National Security Crime

1 Ilanard National Security journal / Vol.
3
ARTICLE
National Security Crime
Erin Creegan
Abstract
Although there is no shortage of attention to each of the varied threats to national security, each of
these threats and the available government responses to them are most often treated as independent
subject matters. Yet there are significant connections between these apparently distinct criminal
offenses, although little work has been done to draw such connections and develop a framework for
studying national security criminal law as a unified discipline. This Article takes the first step towards
building such a curriculum by integrating the criminological and legal aspects of crime in the national
security realm. It examines four categories of crimes— treason, espionage, sabotage, and terrorism
and the applicable federal statutes available to prosecutors to combat these threats to national security.
The Article then proceeds to draw upon interdisciplinary connections across these disparate crimes to
examine why individuals engage in both violent and "white-collar" national security crime. Looking
at tools ranging from wiretap authorizations to classification systems, the Article addresses what the
Government can do to detect, prevent, prosecute and punish national security crimes.
Introduction
Legal academics have increasingly come under two seemingly contradictory pressures: on
one hand, they are compelled to harmonize, centralize, and condense the subjects they teach; on the
other hand, they are
* Trial Attorney, U.S. Departrnent ofJustice. National Security Division, Counterterrorism Section; Adjunct
Professor of International Criminal Law at the University of Maryland College Park, Criminology and
Criminal Justice; Adjunct Professor of Scholarly Writing in International Law at the George Washington
University Law School. The opinions represented in this paper are those of the author and do not express the
positions of the United States Government in any way.
Copyright 0 2012 by the Presidents and Fellows of Harvard College and Erin Creegan
/National
told to offer more highly specialized classes in order to meet a perceived demand for niche
legal experts over generalists. The same dynamic exists in many areas of the modern world:
in the international state system, regions create more cross-border regulation while localities
seek more autonomy; in journalism, mid-level newspapers suffer while international brands
thrive and local newspapers proliferate. While it is a worthy endeavor to resist over-
compartmentalizing legal education, there are some notable advantages to grouping like
subjects together for study. This paper proposes one way to accommodate the twin
pressures to be more specialized and more interdisciplinary: it suggests the idea of a
subject of "National Security Crime" that will draw on both legal and criminological concepts
to analyze a family of seemingly disparate crimes united by their mutual threat to national
2 Ilanard National Security journal / Vol. 3
security.
One related course already exists. In law schools across the country, the relatively new
subject of "International Criminal Law" is already being taught. International Criminal Law,
as it is understood today, began with the international military tribunals at Nuremberg, but
only became a field of study with the creation of the United Nations International Criminal
Tribunals in the 1990s. Today, the typical International Criminal Law casebook includes a
wide array of topics: hybrid courts built by the cooperation of national states and the
international community in the aftermath of national disasters, suppression conventions
wherein countries agree to domestically combat transnational threats, the intersection of
criminal law and the law of armed conflict, extradition treaties and mutual legal assistance
treaties which promote 'cop-to-cop" assistance, international law enforcement organizations
like Interpol, and so forth. Even while the precise parameters of International Criminal Law
are far from settled, the many variations on the subject are bound together by the emergent
belief that cooperative use of criminal law can help states redress some of the most
egregious international problems.
Indeed, what is typically grouped under the heading of International Criminal Law actually
includes two distinct concepts: International Criminal Law which addresses violations of
international law perpetrated by state actors), and Transnational Criminal Law (which entails
cooperation between states to tackle threats posed by more "ordinary" criminal activities, for
example, terrorism, slavery, human trafficking, and organized crime, . In attempting to teach
a class that focused on the nexus between international concerns and criminal law, I wanted
to teach an International Criminal Law class that included three concepts: traditional International
Criminal Law (Nuremberg and the international tribunals), newly emerging and rapidly growing
Transnational Criminal Law suppression conventions, extradition, transborder cooperation , and
National Security Criminal Law (threats against the security of a state and its people as such, whether
they come from another state or a transnational or even domestic group). As it turned out, I was
totally unable to find any book, article, etc. dealing with this third type of crime, what I have called
"National Security Criminal Law" and had to write an insert for a custom text book that, in some part,
is a skeletal form of the article that follows.
While there are many law school classes that address the legal issues related to terrorism, nowhere
does there seem to be a class—or publication for that matter—dealing with this idea of "National
Security Criminal Law," a body of law that would also seem to extend to treason, espionage,
disclosure of classified information ä la WikiLeaks, and sabotage—alongside terrorism. Yet these
concepts are closely connected, not only in their legal profiles (i.e. how they are criminalized,
suppressed, tried, and punished) but also in their criminological profiles (i.e. their causes and
methods of prevention), as well as the way in which law enforcement officials investigate and detect
them. National Security Criminal Law should be treated as a cohesive field of study, one that goes far
beyond the contemporary focus on the crime of terrorism. To address the criminological and law
enforcement similarities of these (not so) disparate offenses, National Security Criminal Law must at
once be compartmentalized and interdisciplinary. That is to say, it must focus on a relatively small
family of offenses while, at the same, it must also import a number of insights from other disciplines
in order to provide a more global view of these crimes.
With that in mind, this Article endeavors to unify the issues mentioned above under the umbrella of
National Security Crime by gleaning insights from the social sciences and from the pragmatic
perspective of law enforcement. It does so in the hope that "National Security Criminal Law" or
"National Security Crime" may one day be taught by some of this nation's more enterprising law
schools. This Article endeavors to show the relatedness of these crimes as a discrete pack of ideas,
and the importance of drawing on interdisciplinary concepts in teaching any form of criminal law. I
hope that this first attempt to articulate the idea of National Security Crime will be sufficient to set
out the blueprint for a new class and a new unifying concept in criminal law.
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First, this Article provides an extensive typology of all the offenses that fall under the rubric of
National Security Crime. With this typology in place, this Article goes on to show how drawing on
interdisciplinary studies can illuminate the causes, detection, prevention, and trial and punishment of
national security crime to suggest a coherent and unified strategy for combating these offenses.
I. The Law
A. Treason
An analysis of national security crime must begin with the most serious of all offenses against the
nation. Treason is the only crime explicitly defined in the U.S. Constitution. Article Ill, Section 3,
"Treason," states:
Treason against the United States, shall consist only in levying War against them, or
in adhering to their Enemies, giving them Aid and Comfort. No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court.
The statutory prohibition on treason appears at 18 U.S.C. 2381 adding to the Constitution:
Whoever, owing allegiance to the United States, levies war against them or adheres
to their enemies, giving them aid and comfort within the United States or elsewhere,
is guilty of treason and shall suffer death, or shall be imprisoned not less than five
years and fined under this title but not less than $10,000; and shall be incapable of
holding any office under the United States.
The crime of treason therefore has a few main elements. First, one may commit treason by supporting
an enemy of the United States, or, alternatively, by undermining the United States without actually
supporting with a specific enemy. Either action is sufficient. This definition includes activities of the
typical turncoat, but also extends to any person or group of people rebelling or raising arms against
the United States.
Second, 1treason has an essential mens rea component, namely, the, specific intent to betray one's
country. l This specific intent—to betray must be proven. 2 Although difficult to prove in its own
right, it is possible to show that a defendant acted with the specific intent to betray by relying on the
common law inference that a person may be presumed to intend the natural consequences of his or
her actions. 3 Thus, if one intends to turn coat and fight against the United States, or intends to join a
rebellion against the United States, that person can be shown to have the specific intent to betray the
United States. A person must owe an allegiance to the United States in order to betray the United
States, but citizenship is not the only form of allegiance. In some older cases, the parameters of those
who owe allegiance to the United States included domiciled aliens. 4 In a state treason case, in which
the Commonwealth of Virginia tried and convicted a nonresident of Virginia for treason, Virginia
courts found allegiance to be owed by any person in the territory relying on the protection of its laws.
56
However, under the Constitution, it is not sufT1cient to simply levy war against the United States or
to give aid and comfort to its enemies, even with the specific intent to betray the United States when
allegiance is owed. There must also be an "overt act"—the third essential element of treason. The
requirement of an overt act is a familiar one in criminal law; conspiracy charges frequently require
1 JAMES WILLARD HURST, THE LAW or TREASON IN THE UNITED STATES 193
(Greenwood Pub. Corp. 197 1) (summarizing the findings of the Supreme Court in Cramer
v. United states, 325 U.s. 1, 31 (1945)).
2 1d. at 205.
3 1d. at 193.
4 Carlisle v. United States. 8 Cl. Ct. 153 1863 ; In re Charge to GrandJury—Treason, 30
F. Cas. 1039 (D. Mass. 1861); United States v. Kawakita, 96 F. supp. 824 (S.D. Cal. 1950).
5 Carlton F.W. Larson, Foygotten Constitutional Law & Enemy Combatants, 154 U. PA. L. REV.
6 , 885-88 2006 .
not just an agreement to do an illegal act, but at least one act in furtherance by at least one member of
the conspiracy. The idea is that there must be more than the mere intent to betray one's country—
otherwise treason could be a simple thought crime. 7 The act itself must be directed at the objective of
treason, which can be proved only one of two ways. The first is testimony by two eyewitnesses to the
same overt act; one witness each to two separate overt acts will not do. 7 The second is a
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confession given in open court.8 A confession to police, or even to national media, would technically
not suffice.
The evidentiary limits on treason are a reaction to the extensive use of charges of treason in Britain to
squelch political enemies, by claiming that opposing political views were somehow unpatriotic. 8 In
particular, though the U.S. Constitution's formulation of treason is verbally quite similar to the British
formulation, it omits an important part. In British law, one could be found guilty of treason for
"compassing the death of the king. "10 This was, essentially, a thought crime. And it could be
completed a number of ways, including metaphorically, by wishing some harm to Britain. ll Over
many centuries the British used charges of treason to destroy political rivals. The Framers of the
Constitution sought to limit the use of politically motivated treason trials by limiting the definition of
the crime, requiring nearly impossible-to-obtain evidence, and putting their proscriptions in the
Constitution, where they could not be modified by statute. 9
Because of the combination of the hefty constitutional requirements of treason and the
seeming reluctance of a democracy to punish persons for their political motives, treason indictments
have been extremely limited in the history of the United States. There are cases of U.S. nationals
joining foreign armies and giving other kinds of support to foreign countries during a time of war,
particularly during World War Il, when the United States was most active in pursing treason cases.
These cases were often troublesome due to issues like dual nationality. Take for example the famous
case of Tomoya Kawakita, a Japanese American dual national living in Japan at the time World War
Il broke out who became a translator for the Japanese. The U.S. Government accused him of visiting
extreme savagery on American prisoners-of-war, and ultimately convicted him of treason and
sentenced him to death. 10 President Eisenhower commuted the death sentence to life in prison.
President Kennedy, however, was disturbed by the
implications of convicting a dual-national of Japan of treason, and so he deported Kawakita to

Japan.14
There are also a few cases from the World War Il era that concern U.S. nationals who were found to
have supported enemy nations with radio shows meant to demoralize U.S. soldiers or exalt the
opposing armies. l ) Examples include the famous indictments of those like Mildred Gillars or "Axis
Sally," an American employed by the Third Reich to broadcast Nazi propaganda during World War Il
to U.S. soldiers including talking about American mothers crying for their dead sons , Robert Henry
Best and Douglas Chandler, other American citizens who became Nazi-employed English language
propagandists—cases which came to collectively be known as "The Broadcast Cases. "16 Since these
cases, there has been only one indictment for treason in the past sixty years: an indictment for Adam
Yahiye Gadahn, an American member of al Qaeda who has created internet video programs exalting
the terrorist organization and declaring that the United States should be the subject of violent attack.
17 18
Thus the only treason indictment in the 21st century is one that follows the rationale of the
7 HURST, supra note I, at 205—1 1. 7 1d. at 211.
8 Id. at 194.
10 Id. 111d.
9 See BRADLEY CHAPIN, THE AMERICAN LAW or TREASON: REVOLUTIONARY AND EARLY NATIONAL
ORIGINS 38 (1964 ; HURST, supra note l, at Il, 154.
10 See, e.g., Kawakita v. United States, 343 U.S. 717 1952) (reviewing and affirming Kawakita's conviction
and death sentence); see also David Rosenzweig, POW Camp Atrocities Led to Tpeason Tnal, L.A. TIMES, Sept. 20,
2002, at 2.
Broadcast Cases. Only cases such as these seem to give the number of clear witnesses and the level of
foreign allegiance necessary to meet the strict constitutional requirements for evidence of treason.
Notwithstanding the high bar posed by the evidentiary requirements of treason, the United States has
been reluctant to try or punish treason
14 See id.
15 For more information on the famous Tokyo Rose cases, see RUSSELL WARREN I-IO\NE, 77te
Huntfor "Tokyo Rose" 1990).
see Gillars v. United states, 182 F.2d 962 D.C. Cir. 1950); Best v. United states, 184 F.2d 131 1st Cir. 1950
. denied. 340 U.S. 939 1950 ; United States v. Chandler, 72 F. supp. 230 (D. Mass 1947), q]'d, 171 F.'2d 921
(1st Cir. 1948 , cert. denied, 336 U.S. 918 (1949); see also Cpt.Jabez W. Loane, IV, Treason and Aiding the
Enemy, 30 Mil. L. Rev. 43, 60456 (1965).
17
See Christine Lagorio, Amencan Charged with Treason, CBS NEWS (Sept. 10, '2009
http://www.cbsnews.com/stories/2006/10/II/terror/main2082055.shtml; see also FBI Most Wanted
Terroristr—Adam Gadahn FEDERAL BUREAU OF INVESTIGATION (Oct. I I , 2006
http://www.fbi.gov/news/stories/2006/october/gadahn_101106.
18
The idea that engaging in what would otherwise be protected First Amendment activity is prohibited
when done under the employ of and to aid the enemy has traction today. In Holder v. Humanitarian Law
Project, 130 S. Ct. 2705 2010 the Supreme Court ruled that a law prohibiting giving "material support" to a
designated foreign terrorist organization, even if that support is just helpful speech, can be outlawed. While
the Supreme Court seemed to protect the right to independently express approval for a terrorist organization,
they upheld the illegality of working directly for one even in a propaganda capacity.
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even in cases in which proof can be established. Pardons or charges on alternate grounds addressing
the violence of the crimes, rather than the political motivation to betray one's country, have been
common. For example, after the 1794 Whiskey Rebellion, President George Washington pardoned all
members of the rebellion in an attempt to undercut support for hardliners against the new Republic. 19
Likewise, in the aftermath of the Civil War, not a single member of the leadership of the
Confederacy, nor any soldier who fought for the South, was tried or punished for treason. President
Andrew Johnson issued a blanket amnesty in favor of restorative justice with the hope that the
Reconstruction of the South would heal a divided nation. 20 As noted above, some of the dual
nationals that faced successful treason prosecutions after World War Il, the time at which treason
prosecutions may have been most active, were pardoned and deported from the United States. John
Walker Lindh, the American Taliban who left the United States to fight in Afghanistan and ultimately
pitted himself against U.S. forces, was not tried for treason but for other crimes upon capture by the
United States. 2
B. Rebellion, Sedition, and other the Treason-related Climes
Treason prosecutions are thus very rare. Yet treason itself is not the only crime in its genus. Chapter
115 of the United States Code, entitled "Treason, Sedition, and Subversive Activities," contains a
number of related crimes. Treason appears first in the chapter as 18 U.S.C. 2381, followed by
"Misprision of treason," 18 U.S.C. 2382, a crime punishing any person owing allegiance to the
United States who knows of a treasonous plot or act of plot but does not report it. Misprision of
treason is punishable by up to seven years in prison and has been punishable in the United States
since the
19
See Daniel H. Pollitt, Presidential Use of Troops to Execute the Laws: A BliefHistmy, 36 N.C. L. REV. 117, 128
1958).
20
The. utility of restorative justice versus punitive justice in cases of a high level of political violence,
like that in a civil war, is still debated and explored. See CHRIS CUNNEEN & CAROLYN HOYLE,
DEBATING RESTORATIVEJUSTICE ('20 1 0); Ross LONDON, CRIME,
PUNISHMENT, AND RESTORATIVEJUSTICE: FROM THE MARGINS TO THE MAINSTREAM (201 1 ;
MARGARITA ZERNO\ A, RESTORATIVEJUSTICE: IDEALS AND REALITIES 2007);
RESTORATIVEJUSTICE: POLITICS. POLICIES AND PROSPECTS (Elrena van der Spuy,
Stephan Parmentier & Amanda Dissel, eds. 2007
21
Copies of Lindh's plea agreement and its statement of facts are publically available from the Eastern
District of Virginia clerk's office and the Department ofJustice's website,
http://www.justice.gov/opa/pr/2002/July/02_ag_400.htm.
first meeting of the U.S. Congress—criminalized at the same time as treason, 11

but lacks any
substantial use.
Rebellion or insurrection, 18 U.S.C. SS 2383, comes next in this chapter of the criminal code.
The provision criminalizing rebellion or insurrection reads: "Whoever incites, sets on foot, assists, or
engages in any rebellion or insurrection against the authority of the United States or the laws thereof,
or gives aid or comfort thereto" is subject to up to ten years in prison and is completely ineligible to
hold office in the United States. This statute is a reaction to the American Civil War, and the conduct
was criminalized by the Second Confiscation Act ofJuly 1 7, 1862. 12 Again, the statute is largely
unused.
Seditious conspiracy appears at 18 U.S.C. 2384 and is punishable by up to twenty years in
prison. The statute was passed a year earlier and also was in response to the American Civil War. 13 It
proscribes two or more persons who "conspire to overthrow, put down, or to destroy by force the
Government of the United States, or to levy war against them, or to oppose by force the authority
thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by
force to seize, take, or possess any property of the United States contrary to the authority thereof '—a
provision closely tracking what treason itself proscribes, with a focus on punishing conspiracy to
commit treason; and, importantly for the modern war on international terrorism, requiring no
allegiance to the United States.
Conspiracy crimes have been called the "darling of the prosecutor's nursery" by revered judge
Learned Hand because of their prosecutionfriendly provability. 14 Perhaps for this reason, seditious
conspiracy enjoys slightly more use than the other statutes we have reviewed. The crime of seditious
conspiracy was challenged in United States v. Rahman26 for mimicking treason without requiring its
onerous two-witness proof. The U.S. Court of Appeals for the Second Circuit summarily rejected the
claim that seditious conspiracy is essentially treason by another name, a crime written expressly to
get around the prosecution difficulties of treason. The
11 Act of April 30, 1790, 8, 1 Stat. 112 (1790 .

12 Ch. 195, S 2, 12 Stat. 590 1862)
13 Act ofJuly 31, 1861, 12 Stat. 284.
14 Harrison v. United States, 7 F.2d 259, 263 2d Cir. 1925). 189 F.3d 88 2d Cir.
1999).
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court found that seditious conspiracy and treason differ not only in name, and in
stigma, but also in essential elements and punishment. 27 Treason is a substantive
crime, whereas seditious conspiracy—like all forms of conspiracy—criminalizes
the agreement to commit crime, but not the substantive crime itself, with the hope
of interdicting the object crime before it is accomplished.
The next group, 18 U.S.C. 2385—86, includes "[aldvocating overthrow of
government" and "[r]egistration of certain organizations." Both were passed in
1940 to protect the United States from a perceived threat from communist
infiltrators during World War 11. 28 18 U.S.C.
2385, known as the Smith Act, was a particularly important statute, with its own
dedicated prosecution section within the U.S. Department ofJustice. It provides:
Whoever knowingly or willfully advocates, abets, advises, or

teaches the duty, necessity, desirability, or propriety of
overthrowing or destroying the government of the United States or
the government of any State, Territory, District or Possession
thereof, or the government of any political subdivision therein, by
force or violence, or by the assassination of any officer of any such
government; or Whoever, with intent to cause the overthrow or
destruction of any such government, prints, publishes, edits, issues,
circulates, sells, distributes, or publicly displays any written or
printed matter advocating, advising, or teaching the duty,
necessity, desirability, or propriety of overthrowing or destroying
any government in the United States by force or violence, or
attempts to do so; or
Whoever organizes or helps or attempts to organize any society,

group, or assembly of persons who teach, advocate, or encourage
the overthrow or destruction of any such government by force or
violence; or becomes or is a member of, or affiliates with, any such
society, group, or assembly of persons, knowing the purposes
thereof
2 7 [d. at 1 12.
28 Section '2385 appeared at 54 Stat. 670—71. Section '2386 was passed October 1 7 at 54
Stat. 1201—04.
Shall [be subject to up to twenty years in prison] and shall be
ineligible for employment by the United States or any department
or agency thereof, for the five years next following his conviction.
Conspiracy to do the same is also prohibited and subject to the same

penalties under the section.
The Smith Act precipitated one of the few periods in U.S. history where
politically-motivated crimes were zealously prosecuted. Due to a perceived threat
from communism, which was growing and overturning societies (from the
American public's perspective) all over the world, there was a public cry for
protection from communist organizations before, America became the target of
communist organizations. 29 This included the prosecution of dozens of Socialist
Workers Party members and teamsters unions members in Minneapolis in 1941 30
and trials of over 100 Communist Party leaders in the U.S. beginning in 1949—
including legendary communist leader Eugene Dennis. 31 However, as the fervor of
this period died down and things like "McCarthyism" came and went in shame, the
courts started to limit the application of the provision. 32 In Yates v. United States,
the U.S. Supreme Court ruled that the First Amendment protects radical and
reactionary speech, unless such speech presents "a clear and present danger " of
imminent incitement. 33 In Scales v. United States, the Supreme Court found that
the Smith Act should not be interpreted to proscribe mere membership in a radical
or violent organization, but required active membership with knowledge and work
to achieve the illegal aims of such a group. 34 Such decisions show how First
Amendment considerations in the United States could make us culturally reluctant
to use criminal statutes that rely on political motives.
The criminal provision following the Smith Act, 18 U.S.C. 2386,

prescribes a related but much less utilized offense requiring certain organizations
to register with the Attorney General, including political
For more on the historical conditions precipitating the Smith Act, see MICHAL R.
BELKNAP, COLD WAR POLITICALJUSTICE, 9—34 (1977 .
30
Dunne v. United States, 138 F.2d 137 8th Cir. 1943), cert. denied, 320 U.S. 790 (1943).
31
See generally Robert Mollan, Smith Act Prosecutions: 771e Effect ofthe Dennis and Yates Decisions, 26 U.
PITT. L. REV. 705 (1965 32 See id.
354 U.S. 298, 303 n.2 & 320 (1957)
367 U.S. 203, 222 1961 .
organizations subject to foreign control, organizations with both political activity

and civilian military activities, and organizations which advocate the violent
overthrow of the government. Although 2386 was passed shortly after the Smith
Act, it never became a favored prosecutorial tool.
The next grouping of related concepts in Chapter 1 15 includes 18

U.S.C. 2387—88: "[a]ctivities affecting armed forces generally" and [a]ctivities
affecting armed forces during war." Section 2388 was first passed during World
War I as the Espionage Act of 1917. 35 The main purpose of this part of the act
appears to be to criminalize the acts of aliens who owe no allegiance to the United
States that might interfere with U.S. forces. 36 These crimes, like seditious
conspiracy, also withstood challenges that they too tried to punish treason by
another name, outside of treason's strict constitutional requirements.37
Section 2388 forbids willfully making or conveying false reports or false

statements with intent to interfere with the operation or success of the military or
naval forces of the United States or to promote the success of its enemies; or
willfully causing or attempting to cause insubordination, disloyalty, mutiny, or
refusal of duty, in the military or naval forces of the United States; or willfully
obstructing or attempting to obstruct the recruiting or enlistment service of the
United States, to the injury of the service or the United States; as well as
conspiracy to do any of the above. All these acts are punishable by up to twenty
years. Harboring a person committing the acts in this section is also punishable by
up to ten years.
Section 2387 was codified during World War Il along with the Smith Act.
38
Section 2387 proscribes, with the intent to interfere with, impair, or influence the
loyalty, morale, or discipline of the military or naval forces of the United States,
advising, counseling, urgmg, or in any manner causing or attempts to cause
insubordination, disloyalty, mutiny, or refusal of duty by any member of the
military or naval forces of the United States; or distributing or attempting to
distribute any written or printed matter which advises, counsels, or urges
insubordination, disloyalty, mutiny, or refusal of duty by any member of the
military or naval forces of the United States. The offense is punishable by up to ten
years in prison and
Act ofJune 15, 1917, 40 Stat. 219, 21 7, 3-8.

Lockhart v. United states, 264 F. 14 6th Cir. 1920)
37
Wilmer v. United states, 264 U.s. F. 11 (6th Cir. 1920
18 U.S.C. 2385 2012).
ineligibility for employment by the United States for the next five years. These
penalties are less severe than those listed in 2388, proscribing similar acts against
the armed forces during a time of war, given the greater national security threat of
such activities during active hostilities.
The last part of Chapter 1 15, 18 U.S.C. 2389—90, is the most

underutilized, with no real uses. 15 Both provisions were set into law by the same
Civil War-era statute,16 illuminating that every provision in Chapter 1 15 is a
15 See In re Charge to Grand Jury, 30 F. Cas. 1036 (CCSD Ohio 1861 .
16 Act of August 6, 1861, 12 Stat. 317.
41
18 U.S.C. 2390 2012).
response to wartime—either the American Revolutionary War, the American Civil
War, World War I, or World War Il and therefore not just wartime, but the most
important wars and those that were most threatening to the continued existence of
the United States. Title 18 U.S.C.
2389, Recruiting for service against United States, penalizes recruiting "soldiers
or sailors within the United States, or in any place subject to the jurisdiction
thereof, to engage in armed hostility against the same"; or opening "within the
United States, or in any place subject to the jurisdiction thereof, a recruiting station
for the enlistment of such soldiers or sailors to serve in any manner in armed
hostility against the United States." The penalty is up to five years. The next
provision, and last of the chapter, is 18 U.S.C. 2390: Enlistment to serve against
United States. It provides that [w]hoever enlists or is engaged within the United
States or in any place subject to the jurisdiction thereof, with intent to serve in
armed hostility against the United States, shall be fined under this title or
imprisoned not more than three years, or both. "41
While treason is an evocative and important criminal concept, it appears rarely in
the United States history. The codification of the most important treason-related
crimes appears to follow dramatic wars and conflicts in U.S. history. Possible
topics for future study include why many of these treason-related crimes are so
rarely used—because of the strong First Amendment protections for political
thought in the United States, as I have suggested? Another reason? Another topic
for study might be whether these crimes should be used more and whether criminal
law can be helpful to advancing national security purposes in the areas Congress
has chosen. Should new criminal offenses be invented, or should current offenses
be modified to make them more useful? Are traitors being tried for lesser
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crimes to avoid the two-witness rule? Is there normative value to calling a person a
traitor and achieving a hard won conviction on a treason-related crime?
C. Espionage
Perhaps one of the next most iconic types of national security crime is that of
espionage. Espionage is generally considered the theft or exploitation of national
defense information.17 It is a relatively common way in which individual acts
directed against the national security of the United States are committed, and
therefore, espionage laws are some of the more utilized national security criminal
laws. Espionage is forbidden in a few parts of the U.S. Code. From 18 U.S.C. 793,
entitled "Gathering, transmitting or losing defense information"
17 The British Security Service defines espionage as "a process which involves human
sources agents) or technical means to obtain information which is not normally publically
available. It may also involve seeking to influence decision makers and opinion-formers
to benefit the interests of a foreign power." VI"71at is Espionage?, SECURITY SERVICE: M15,
https://www.mi5.gov.uk/output/what-is-espionage.htmI last visitedJune 9, 2012).
(a) Whoever, for the purpose of obtaining information
respecting the national defense with intent or reason to believe that
the information is to be used to the injury of the United States, or
to the advantage of any foreign nation [obtains information]; or
(b) Whoever, for the purpose aforesaid, and with like intent or
reason to believe, copes, takes, makes, or obtains, or attempts to
copy, take, make, or obtain, any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance,
document, writing, or note of anything connected with the national
defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or

agrees or attempts to receive or obtain from any person, or from
any source whatever, any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan,
map, model, instrument, appliance, or note, of anything connected
with the national defense, knowing or having reason to believe, at
the time he receives or obtains, or agrees or attempts to receive or
obtain it, that it has been or will be obtained, taken, made, or
disposed of by any person contrary to the provisions of this
chapter; or
(d) Whoever, lawfully having possession of, access to, control

over, or being entrusted with any document, writing, code book,
signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to the
national defense, or information relating to the national defense
which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits or
causes to be communicated, delivered, or transmitted or attempts
to communicate, deliver, transmit or cause to be communicated,
delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on
demand to the officer or employee of the United States entitled to
receive it; or
(e) Whoever having unauthorized possession of, access to, or

control over any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map,
model, instrument, appliance, or note relating to the national
defense, or information relating to the national defense which
information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign
nation, willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted, or attempts to
communicate, deliver, transmit or cause to be communicated,
delivered, or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it to the
officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful

possession or control of any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan,
map, model, instrument, appliance, note, or information, relating
to the national defense,
National
(l) through gross negligence permits the same to be removed from

its proper place of custody or delivered to anyone in violation of
his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed
from its proper place of custody or delivered to anyone in
violation of its trust, or lost, or stolen, abstracted, or destroyed,
and fails to make prompt report of such loss, theft, abstraction, or
destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years,
or both.
A more serious provision, in which the person actual y transmits defense
information to a foreign government, is located in 18 U.S.C. 794, entitled
"Gathering or delivering defense information to aid foreign government":
(a) Whoever, with intent or reason to believe that it is to be
used to the injury of the United States or to the advantage of a
foreign nation, communicates, delivers, or transmits, or attempts to
communicate, deliver, or transmit, to any foreign government, or
to any faction or party or military or naval force within a foreign
country, whether recognized or unrecognized by the United States,
or to any representative, officer, agent, employee, subject, or
citizen thereof, either directly or indirectly, any document, writing,
code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, note, instrument, appliance,
or information relating to the national defense, shall be punished
by death or by imprisonment for any term of years or for life,
except that the sentence of death shall not be imposed unless the
jury or, if there is no jury, the court, further finds that the offense
resulted in the identification by a foreign power as defined in
section 101 (a) of the Foreign Intelligence Surveillance Act of
1978) of an individual acting as an agent of the United States and
consequently in the death of that individual, or directly concerned
nuclear weaponry, military spacecraft or satellites, early warning
systems, or other means of defense or retaliation against large-
scale attack; war plans; communications intelligence or
cryptographic information; or any other major weapons system or
major element of defense strategy.
(b) Whoever, in time of war, with intent that the same shall be
communicated to the enemy, collects, records, publishes, or
communicates, or attempts to elicit any information with respect to
the movement, numbers, description, condition, or disposition of
any of the Armed Forces, ships, aircraft, or war materials of the
United States, or with respect to the plans or conduct, or supposed
plans or conduct of any naval or military operations, or with
respect to any works or measures undertaken for or connected
with, or intended for the fortification or defense of any place, or
any other information relating to the public defense, which might
be useful to the enemy, shall be punished by death or by
imprisonment for any term of years or for life.
And finally, in 18 U.S.C. 798, "Disclosure of classified information":

(a) Whoever knowingly and willfully communicates, furnishes,
transmits, or otherwise makes available to an unauthorized person,
or publishes, or uses in any manner prejudicial to the safety or
interest of the United States or for the benefit of any foreign
government to the detriment of the United States any classified
information
(l) concerning the nature, preparation, or use of any code, cipher,
or cryptographic system of the United States or any foreign
government; or
(2) concerning the design, construction, use, maintenance, or
repair of any device, apparatus, or appliance used or prepared or
planned for use by the United States or any foreign government
for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of
the United States or any foreign government; or
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(4) obtained by the processes of communication intelligence

from the communications of any foreign government, knowing the
same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years,
or both.
Other, more specific acts of espionage, such as photographing or sketching defense
installations,43 are also criminalized in the remaining portions of Title 18, Chapter
37.
l . Disclosure of Classified Information

Chapter 37 addresses espionage for the purposes of aiding an enemy or
levying war against the United States (i.e. the movement of classified information
against a state's interest in the context of interstate relations . Yet there are other
movements of classified information that can undermine national security without
creating a conflict between states. While the statutes above mostly contemplate
interstate war and security of information from state enemies, there are other
threats in the disclosure of classified information. This could include the mass
disclosure of protected government information in the Pentagon Papers and
WikiLeaks episodes.
The Pentagon Papers involved the disclosure of classified reporting about the
"real" war in Vietnam, including a number of things the U.S. Government had
misrepresented to the public. The leaker of the Pentagon Papers was not
successfully prosecuted (charges against the leaker being dismissed for gross
governmental misconduct in the course of the prosecution , and the New York
Times, which published the story, was not prosecuted but instead seen as shielded
by the journalistic protections of the First Amendment. 18 There was, and is still, a
great deal of public support for the disclosure.
More recently, WikiLeaks, a journalistic website that had previously been praised
for revealing various counts of government misconduct, 19
18 U.S.C. 795 2012 .

published thousands of diplomatic cables that merely embarrassed the United
States and undermined cooperative diplomatic relations abroad. 46 Though intended
to reveal governmental misconduct in the Iraq War, the disclosed materials instead
showed that there were no real secret aspects to the war in Iraq, and that the U.S.
Government had been largely forthcoming, or already exposed by the normal
operation of the press, regarding the events of the war. 47 Public support for the
perpetrators of the WikiLeaks classified information dump has been much weaker,
as many believe that those who published the information had unnecessarily put
the United States in danger by revealing the information. 48
2. The Other Espionage Crimes
The espionage prosecutions in the United States are coordinated by the

Counterespionage Section CES) within the National Security Division of the
18 See generally INSIDE THE PENTAGON PAPERS John Prados & Margaret Pratt Porter, eds.
2005 .
19 Winners ofIndex on Censorship Freedom ofExpression Awards Announced, INDEX ON
CENSORSHIP
(Apr. 22, 2008 , http://www.indexoncensorship.org/2008/04/winners-of-index-on-
Department of Justice, cooperating with the local U.S. Attorney's Office for the
federal district that has jurisdiction over the crime. The Counterespionage Section's
work includes not only prosecuting the offenses listed above, but also additional
and related duties more tangential to traditional espionage. The typical view of
espionage is that of a foreign agent clandestinely working to steal defense
technologies and secrets. Other crimes that CES prosecutes include those targeting
those agents and their presence in the United States, preserving good diplomatic
relations with friendly countries, protection of weapons, and preservation of U.S.
pioneering technologies. Some of the most important duties of the
Counterespionage Section are ensuring the registration of foreign agents operating
in the United States, which is intended to make it more diffcult for foreign agents
to engage in espionage, and the protection of U.S.
censorship-freedom-of-expression-award-announced; Tie CO' ofBlood. Report on Extra-judicial

Killings and Disappearances, KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (Sept.
2008), http://www.ediec.org/library/item/id/402/; Press Release: Amnesty announces
Media Awards 2009 Winners, AMNESTY INTERNATIONAL UK June 2, 2009
http://amnesty.org.uk/news_details.asp?NewsID = 1822 7.
46
Praveen Swami, Wikileaks: Cables Will Embanass, but Won't Cause Diplomatic
Meltdown, TELEGRAPH, (Nov. 29, 2010),
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/8169019 /Wikileaks
cables-will-embarrass-but-wont-cause-diplomatic-meltdown.html.
47
See Wikileaks's Leaks Mostly Confinn Earlier Iraq Reporting, WASH. POST
Oct. 26, 2010), http:/,/www.washingtonpost.corn/wp-
10/25/AR2010102504643.html.
Pew sun,ey: Public Views WikiLeaks Document Release as Handful, CBS NEWS (Dec.
g, 2010 http://www.cbsnews.com/8301-503544_162-20025074-503544.html.
16 National Security joumal / Vol. 3
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national defense technologies, particularly if related to atomic energy. These

different responsibilities of CES, all related to protecting the national security of
the United States in terms of relationships with other states, are explored below.
a. Foreign Agents and Diplomatic Relations
The relevant prohibitory provision of the Foreign Agents Registration Act

(FARA),49 22 U.S.C. 612, the "Registration statement," reads, in part:
a Filing; contents
No person shall act as an agent of a foreign principal unless he has
filed with the Attorney General a true and complete registration
statement and supplements thereto as required
While the FARA was not intended to be used against U.S. nationals (those in the
best position to steal national defense technologies) and is more often used against
diplomatic personnel and representatives to the United States from foreign
governments, it is an interesting anti-spying statute. This law does not address
spying directly, but tries to criminalize the factual situations that create the
opportunity for a person to function as a spy, so that a would-be spy, if he or she is
discovered, can be arrested and stopped before any damage is done. The FARA
has enjoyed some recent attention due to the "Russian Spy" cases in the summer of
2010.50 A number of deepcover agents of the Russian government were living in
the United States for extended periods of time, purportedly to gain information
about U.S. culture and political attitudes, and not trying to access classified
information directly.51 They were indicted under FARA-like provision 18 U.S.C.
951.
For more information on the FARA, see THE REGISTRATION OF FOREIGN AGENTS IN
THE UNITED STATES: A PRACTICAL AND LEGAL GUIDE Joseph E. Pattison &John L.
Taylor, eds. 1981 .
50
See, e.g., Jason Ryan & Megan Chuchmach, Russian Spy Ring Suspects Busted! 10
Alleged Secret Agents Amsted in U.S. ABC NEWS June 28, 2010
http://abcnews.go.com/Blotter/russianspy-ring- 10-accused-russian-spies-arrested/ story?
id= 1 103 7360#.T7 QC)FZ9YvIY. 51 See Ten Alleged Secret Agents Amsted in the United
States, U.S. DEP'T 0b JUSTICE, June 28,
2010); http://www.justice.gov/opa/pr/2010/June/10-nsd-753.html. See also Complaints I &
2, attached to the Press Release (detailing the discovery and activities of the Russian
agents). In particular, the complaints show the use of new cornputer technologies to transfer
information between the Russian government and its agents. The traditional method of
Harvard
The maximum penalty for a violation of FARA is five years in prison. This 52
relatively low sentence may reflect two things about the statute: (l) that it is
primarily prophylactic and aimed at preventing more serious crime—once a
foreign agent is discovered, it is generally about as helpful to jail him or her as it is
to simply deport him or her, and (2) the offender is generally not a traitor. FARA
violations rarely involve betrayal of trust by a U.S. Government employee, soldier,
or other citizen. Foreign agents have been ordered to undertake a mission in the
United States. The offense is more diplomatic in nature, an offense by the
government that sent the unregistered agent. The more appropriate solution may
thus reasonably be for the unregistered agents to be returned to their country as
Persona non grata 53 in the United States, which is what is done when diplomats
commit serious crimes, and for the offending nation to make amends with the
United States.
More diplomacy, foreign affairs, and pseudo-espionage related offenses can be
found in Chapter 45 of Title 18: "Foreign Relations." These offenses may target
espionage from another angle, or just try to keep good relations with other states.
They might also seek to protect neutrality in a time of war—while espionage
protects defense capabilities in times of conflict, these peace-related provisions
may protect the safe position of neutrality. Prohibitions include:
• 951. Agents of foreign governments (the actual charge of the Russian
Spy cases, requiring registration, carrymg up to ten years Incarceration
952. Diplomatic codes and correspondence (prohibiting a U.S.
employee's interference with diplomatic communication, carrying up to
ten years incarceration a potential charge in future
WikiLeaks-esque crimes?)
passing information, shown in the Hanssen case, was by "dead-drops" leaving physical
copies of the information in a mutually agreed place. The "Russian spy" cases may show
that espionage is becoming more technological, but it may also show that low-tech methods
are still the hardest to detect.
22 U.S.C. 61 (2012 .
53
Persona non grata is Latin for "an unwelcome person." It most often refers to the right of
a country to expel and ban a diplornat from reentering the country after he or she has
committed a serious offense, which, because of diplomatic immunity, cannot be prosecuted.
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• 953. Private correspondence with foreign governments (U.S. citizen

communication with a foreign government to the detriment of the United
States, carrying up to three years incarceration
954. False statements influencing foreign government (similar to the

previous section, except the substance of the communications is false,
carrying up to ten years incarceration
• 955. Financial transactions with foreign governments (doing business
with a government who is in default on financial obligations to the
United States, carrying up to five years incarceration
956. Conspiracy to kill, kidnap, maim, or injure persons or damage

property in a foreign country (carrying varying levels of punishment
depending on the object of the crime
957. Possession of property in aid of foreign government ("knowingly
and willfully possess[ing] or controlling] any property or papers used or
designed or intended for use in violating any penal statute, or any of the
rights or obligations of the United States under any treaty or the law of
nations" carrylng up to ten years incarceration
958. Commission to serve against friendly nation (exactly as it sounds,
a provision criminalizing "accept[ing] and exercise[ing] a commission to
serve a foreign prince, state, colony, district, or people, in war, against
any prince, state, colony, district, or people, with whom the United
States is at peace" carrying up to three years incarceration)
• 959. Enlistment in foreign service if doing so from the territorial United
States; it is not a crime to travel to another country to enlist once there—
carrying up to three years incarceration
960. Expedition against friendly nation carrying up to three years

mcarceration
• 961. Strengthening armed vessel of foreign nation augmenting forces of
foreign armed force at war with a country that the United States is at
peace with—carrying one year of incarceration
962. Arming vessel against friendly nation (augmenting forces to

commit hostilities against friendly nation of the United States
punishable by three years incarceration
963. Detention of armed vessel (authorizing the President to, in times of
U.S. neutrality, detain vessels capable of participating in a war effort
until satisfied they will remain neutral, and criminalizing anyone who
attempts to take them out of port in such a case by up to three years
incarceration
964. Delivering armed vessel to belligerent nation ten years
965. Verified statements as prerequisite to vessel's departure (ten years)
966. Departure of vessel forbidden for false statements (ten years

967. Departure of vessel forbidden in aid of neutrality (ten years)
• 970. Protection of property occupied by foreign governments:
a Whoever willfully injures, damages, or destroys, or attempts

to injure, damage, or destroy, any property, real or personal,
located within the United States and belonging to or utilized or
occupied by any foreign government or international
organization, by a foreign official or official guest, shall be fined
under this title, or imprisoned not more than five years, or both.
(b) Whoever, willfully with intent to intimidate, coerce, threaten, or
harass—
(l) forcibly thrusts any part of himself or any object within or
upon that portion of any building or premises located within the
United States, which portion is used or occupied for official
business or for diplomatic, consular, or residential purposes by
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(A) a foreign government, including such use as a mission to an

international organization;
(B an international organization;
(C a foreign official; or
(D an official guest; or
(2) refuses to depart from such portion of such building or premises after
a request
(A) by an employee of a foreign government or of an
international organization, if such employee is authorized to
make such request by the senior official of the unit of such
government or organization which occupies such portion of
such building or premises;
(B) by a foreign official or any member of the foreign official's
staff who is authorized by the foreign official to make such
request;
(C) by an official guest or any member of the official guest's
staff who is authorized by the official guest to make such
request; or
D) by any person present having law enforcement powers; shall
be fined under this title or imprisoned not more than six months,
or both.
Other diplomatic crimes outside of Chapter 45 might include 18 U.S.C. 112:

Protection of foreign officials, offlcial guests, and internationally protected
persons; 18 U.S.C. 878: Threats and extortion against foreign officials, ofT1cial
guests, or internationally protected persons; 18 U.S.C. I l 16; Murder or
manslaughter of foreign officials, official guests, or internationally protected
persons, and 18 U.S.C. 1201(a)(4): Kidnapping, when the person is a foreign
official, an internationally protected person, or an official guest as those terms are
defined in 1 116.
b. Weapons
If the criminalization of espionage is aimed at protecting national defense

information, then sensitive weapons technologies, some of the most critical
portions of national defense information, must be protected from disclosure. The
other side of the Counterespionage Section's work, away from foreign relations
issues, is export controls on sensitive and potential weapon-use technologies. It is
in export controls that CES does most of its work. The most dangerous technology
protected is nuclear technology. The relevant prohibition of the Atomic Energy Act
appears in 42 U.S.C. 2122, "Prohibitions governing atomic weapons":
(a) It shall be unlawful, except as provided in section 2121 of this
title, for any person, inside or outside of the United States, to
knowingly participate in the development of, manufacture,
produce, transfer, acquire, receive, possess, import, export, or use,
or possess and threaten to use, any atomic weapon. • •l
There are also some prohibitions in other sections of the United States Code, 42
U.S.C. "'2274—77, that ban the communication, receipt, tampering, and disclosure
of restricted data about atomic energy.
Other export control crimes include those listed under the Arms Export Control Act
of 1976, 22 U.S.C. ch. 39 (AECA), which provides comprehensive regulation,
including criminal penalties, for protecting defense technologies from export. The
AECA confers authority on the President to control the import and export of
defense goods and services. The AECA puts the onus on American arms
manufacturers and dealers to comply with certain best practices that will prevent
weapons materials from falling into the wrong hands, including verification of
buyers and documentation of sales. Other parts of Title 22 also proscribe
movement of defense technologies, including 22 U.S.C. 401: "Illegal exportation
of war materials"; but the AECA is the most commonly used statute for weapons
trading prosecutions, and probably CES's most commonly used basis for
prosecution overall.34
Other common provisions for CES prosecutions include those of the International
Emergency Economic Powers Act of 1977 (IEEPA), 50 U.S.C.
1701—07, which is a flexible set of statutes allowing the President to regulate
commerce after declaring a national emergency in response to any unusual and
extraordinary threat to the United States which has a foreign source. The President
can designate a country or organization and thus block trade with that country or
organization, as well as freeze assets of the
54
See generally U.S. Dep't. ofJustice, Interim Response to FOIA/ PA #09-037 July 27,
2009), available at http://www.j
udicialwatch.org/files/documents/2009/480_DOJ_NSD_chinaexports_inter im_7_2009.pdf
describing prosecutions for export control violations between 2003 and 2009).
/ 20National
country or organization. The trade need not be weapons-related (though as a

practical matter, it often is . Thus this statute is one of the most important, and
complex, statutes used to suppress international weapons dealings.
The Export Administration Act of 1979 (EAA) and its attendant regulations are
also common CES prosecutions.55 The EAA allows the President some control over
exports in cases of national emergency or foreign policy, including short supply of
essential materials. AECA, IEEPA, and EAA are the most commonly prosecuted
cases of the Counterespionage Section, unlike the other charges reviewed in this
section of this paper.
Also important, there are criminal prohibitions on trade or use or development of
highly destructive weapons like weapons of mass destruction, including
"CBRN"—chemical, biological, radiological, and nuclear weapons. There are
chapters of the U.S. Code that proscribe chemical (Chapter 11B of Title 18 and
biological Chapter 10 of Title 18) weapons specifically.
c. Technology
Recently, "economic espionage" the spying of foreign agents on American

businesses for trade secrets, has become more of a national security priority. 21 This
20 d.
21 77te FBI's National Strategyfop Countenntelligence: A Primer, FEDERAL BUREAU 01•'
subject is not treated extensively here, and is not handled by the Counterespionage
Section, but by the Department of Justice's Computer Crime and Intellectual
Property Section. 22 The statute, 18 U.S.C. 1831, "Economic espionage," reads:
(a) In General. Whoever, intending or knowing that the offense
will benefit any foreign government, foreign instrumentality, or
foreign agent, knowingly—
(l) steals, or without authorization appropriates, takes, carries

away, or conceals, or by fraud, artifice, or deception obtains a
trade secret;
(2) without authorization copies, duplicates, sketches, draws,
photographs, downloads, uploads, alters, destroys, photocopies,
replicates, transmits, delivers, sends, mails, communicates, or
conveys a trade secret;
(3) receives, buys, or possesses a trade secret, knowing the
same to have been stolen or appropriated, obtained, or converted
without authorization;
(4) attempts to commit any offense described in any of
paragraphs (l) through (3); or
(5) conspires with one or more other persons to commit any
offense described in any of paragraphs (l) through (3), and one or
more of such persons do any act to effect the object of the
conspiracy,
shall, except as provided in subsection (b), be fined not more than

$500,000 or imprisoned not more than 15 years, or both.
(b) Organizations.— Any organization that commits any offense
described in subsection a) shall be fined not more than
D. Sabotage
Treason, espionage, disclosure of classified information, spymg, and trading in

weapons technology may be some of the crimes that come most readily to mind
when one thinks of national security crimes (of course along with terrorism). Yet
there is another category of offenses which I believe constitute an entirely distinct
class: destructions of things or people who contribute to the U.S. Government's
proper functioning or continued existence. This subsumes assassinations and all
other attacks on government personnel, facilities, instrumentalities, and vital
infrastructure. These crimes belong to a single genus, even though they have yet to
perhaps be considered a group of related crimes, and do not come under a common
heading, not in the U.S. Code nor in supervision of prosecution at the Department
ofJustice. They should be considered a part of our typology of "Sabotage" since
they all attempt to strike at national security by
INVESTIGATION (May 31, 2005), http://www.fbi.gov/page2/may05/ciprimer053105.htrn.

22 See, e.g., Chinese National Charged with Economic Espionage Involving Theft of Trade Secretsfrom
Leading Apicultural Company Based in Indianapolis, U.S. DEP'T Ol'JUSTICE, Aug. 31, 2010
http://www.justice.gov/opa/pr/2010/August/ I O-crm-983 .html.
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undermining its vital instrumentalities. Most of these statutes appear in Chapters 18

and 84 (attacks on government personnel) and Chapter 105 (Sabotage), but others
are scattered throughout the U.S. Code (such as crimes relating to attacks on
government facilities).
Assassination and kidnapping crimes that strike at the country's leadership are
some of the foremost Sabotage crimes. Chapter 18 contains a single statute, 18
U.S.C. 351, which prohibits "Congressional, Cabinet, and Supreme Court
assassination, kidnapping, and assault." Chapter 84 has two criminal statutes: 18
U.S.C. 1751, which prohibits "Presidential and Presidential staff assassination,
kidnapping, and assault," and 18 U.S.C.
1752, which prohibits interfering with or flouting security protocols at "Restricted
buildings and grounds" when restricted for the security of the President.
Together these statutes protect the leadership of the country in order to preserve
continuity of government and ensure that the nation is not suddenly decapitated and
unable to function in its security interest. Assassinations and attempted
assassinations are common throughout history, either motivated by politics (such as
one orchestrated by an enemy country or terrorist organization , or the general
insanity or nihilism of the offender. Around the turn of the 20th century, anarchists
often succeeded in accomplishing semi-political, semi-nihilistic attacks on heads of
state, called 'propaganda by deed." Successful hits include the French president in
1894, the empress of Austria in 1897, the Spanish prime minister in 1897, the king
of Italy in 1900, and U.S. President McKinley in 1901. One need only examine the
immediate cause of World War I to discover how vital preventing assassination
may be to the national interest.
Title 18 U.S.C. 1 1 14, Protection of officers and employees of the United States,
provides jurisdiction for protection of other government employees, including rank
and file.
Whoever kills or attempts to kill any officer or employee of the
United States or of any agency in any branch of the United States
Government (including any member of the uniformed services)
while such officer or employee is engaged in or on account of the
performance of official duties, or any person assisting such an
officer or employee in the performance of such duties or on
account of that assistance, shall be punished
(l) in the case of murder, as provided under section I I I I
[maximum punishment being death];
(2) in the case of manslaughter, as provided under section
1 1 12 [maximum punishment being 15 years]; or
(3) in the case of attempted murder or manslaughter, as provided
in section 1 113 [maximum punishment being 20 years for murder
or 7 for manslaughter].
While perhaps not as dangerous to national security as the sudden loss of state
leadership, the government's effectiveness relies on the protection of its workforce
from being targeted for sabotage.
Chapter 105, "Sabotage" contains five criminal prohibitions, mostly relating to
interfering with defenses during a time of war: including interfering with
Fortifications, harbor defenses, or defensive sea areas (18 U.S.C. 2152),
Destruction of war material, war premises, or war utilities (18 U.S.C. 2153),
Production of defective war material, war premises, or war utilities (18 U.S.C.
2154), Destruction of national-defense materials, national-defense premises, or
national-defense utilities (18 U.S.C. SS 2155), and Production of defective
national-defense material, national-defense premises, or national-defense utilities
(18 U.S.C. 2156). The idea of the crime of sabotage comes from wartime conduct
directed against the national war effort. Such conduct has been proscribed not only
by domestic law but also the international law of armed conflict, which does not
grant spies or saboteurs prisoner of war status if captured. Rather, they are referred
to military criminal prosecution.238
Other statutes that should be placed under the heading of sabotage might include
some of the Chapter 65 "Malicious Mischief" crimes: 18 U.S.C. 1362:
Communication lines, stations or systems (attacks on); 1363: Buildings or
property within special maritime and territorial jurisdiction (attacks on); 1365:
Tampering with consumer products; 1366: Destruction of an energy facility; 1367:
Interference with the operation of a satellite; or even 1368: Harming animals used
in law enforcement. Other candidates include crimes like 18 U.S.C. 1992:
Wrecking trains, or 2101: Riots, or 42 U.S.C. 2284: Sabotage of nuclear
/JVational
facilities or fuel. The genus of sabotage crimes might also include 18 U.S.C.
2332f, Bombings of places of public use, Government facilities, public
transportation systems and infrastructure facilities—a crime that actually appears in
the Terrorism chapter of Title 18. Together these crimes cover activities generally
directed to undermining the infrastructure of the United States.
There are also many other kinds of crimes that could be considered national
security crimes in the sense that they affect the security of the state, its people, and
its facilities, including counterfeiting, passport or immigration fraud, or fraud in
other government documents. These crimes may form a periphery of what we
consider to be national security crime of the, kind in this section, sabotage crimes
like assassination or the bombing of government property. They undermine the
proper functioning of the U.S. Government and its instrumentalities, but in more of
a nuisance manner than a destructive one, and often with purposes not related to
23 ?' See Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
art. 5, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
national security.
Perhaps even the disclosure of classified information a la WikiLeaks is more
appropriately classified as "Sabotage" than it is "Espionage," if indeed those actors
intended to disclose protected information, but not really information pertaining to
the national defense. Perhaps they were simply trying to "take down" the reputation
of the United States—more of a sabotage-style goal. Such an example might show
the conceptual difficulty of putting clear lines around the typology of crimes that
this paper suggests: treason, espionage, sabotage, and terrorism. Of course such
concepts can and necessarily do somewhat overlap, but may still provide a helpful
typology for studying the creation, use, and application of like criminal statutes.
E. Terrorism
Terrorism is generally thought of as the use of violence against civilian targets

when committed with a political motive. 24 Texts, articles, and even law school
courses are dedicated to the legal regime surrounding terrorism. Unlike some of the
crimes discussed above, information about terrorism crimes is abundant—so this
section is brief. Terrorism is a roving concept that is not confined solely to criminal
law, but also touches on military law, the law of armed conflict, intelligence law,
and other areas. Perhaps because of its discursive nature, terrorism does not neatly
fit into any division of crimes relating to international system it could be classified
under International Criminal Law, Transnational Criminal Law, or, as I argue,
National Security Criminal Law.
A good starting point for any course or text on National Security Criminal Law is
the American laws that criminalize terrorist acts. Many of these laws are contained
in Chapter 1 13B of the U.S. Code under the heading "Terrorism." This chapter
contains two different approaches to terrorism: the pre-9/11 or pre-Patriot Act
approach, and the post-9/11 or post-Patriot Act approach. The distinction has less
to do with when the laws were passed all of the crimes in the terrorism subchapter
were enacted between 1988 and 2004—than it does with how these laws are used
by prosecutors.
Sections 2332—39 represent the pre-9/11 approach, criminalizing the Use of
weapons of mass destruction 18 U.S.C. 233'2a), Acts of terrorism transcending
national boundaries (18 U.S.C. 2332b), certain Financial transactions 18 U.S.C.
2332d), Bombings of places of public use, government facilities, public
transportation systems and infrastructure facilities (18 U.S.C. 2332f), use of
Missile systems designed to destroy aircraft (18 U.S.C. 233'2g), Radiological
dispersal devices (18 U.S.C.
233'2h), and Harboring or concealing terrorists (18 U.S.C. 2339). These offenses
target a method or tactic that is commonly used by terrorists, not "terrorism" itself.
By contrast, the post-Patriot Act statutes deliberately target terrorists as terrorists,
not merely the use of terrorist tactics. Indeed, they to interdict would-be terrorists
before they employ their dangerous tactics. These statutes, 18 U.S.C. 2339A,
24 For more on the longstanding debate surrounding the definition of terrorism, see BEN
SAUL, DEFINING TERRORISM IN INTERNATIONAL LAW 2008 , and Nicholas J. Perry,
The Numerous Federal Legal Definitions of Tenonsm: The Problem of Too Many Grails, 30 J.
LEGIS. 249 (2004 .
2339B, 2339C, and 23391) prohibit: the provision or material support to terrorists
or designated terrorist organizations, the financing of terrorism, and the receipt of
military-type training from a foreign terrorist organization. These charges* 2339A
and 2339B particularly—have become far and away the most commonly used by
the Department ofJustice to fight terrorist crime—comprising 71% of all
National
terrorism cases.25 It may be hard to say which approach works best in the long run,
and it may be that a combination works best for the United States. However, the
relative success of law enforcement in preventing any major terrorist plot from
coming to fruition since 9/1 1 tends to show the importance of utilizing criminal
statutes designed for interdiction.
The Counterterrorism Section (CTS) of the Department ofJustice is responsible for
coordinating the federal effort to interdict, incapacitate, prosecute, and punish
terrorists through the use of domestic criminal law. 61 To this end, the
Counterterrorism Section typically relies on the following statues (some of which
were discussed above, while others, though not technically "terrorism statutes," are
still used to combat terrorism :
• aircraft piracy and related offenses (49 U.S.C. 46501-07)
• aircraft sabotage (18 U.S.C. SS 32
• crimes against immediate family members of all federal officials (18
U.S.C. SS 1 15) and against internationally protected persons (18
U.S.C. 1 12, 878, 1 1 16,
• sea piracy (18 U.S.C. 1651)
• hostage taking (18 U.S.C. 1203
• terrorist acts abroad against United States Nationals (18 U.S.C.
2332)
• acts of terrorism transcending national boundaries (18 U.S.C. 2332b)
• conspiracy within the United States to murder, kidnap, or maim persons
or to damage property overseas (18 U.S.C. 956)
• provision of material support to terrorists and terrorist organizations (18
U.s.c. 2339A, 2339B, 2339C, 23391))
• use of biological, nuclear, chemical or other weapons of mass
destruction 18 U.s.c. SSSS 175, 831, 2332% 2332a)
25 CENTER ON LAW AND SECURITY, NEW YORK UNIVERSITY SCHOOL OF LAW,

TERRORIST TRIAL REPORT CARD: SEPTEMBER 11, 2008 6 Sept. 11, 2008 , available at
http://www.lawandsecurity.org/publications/Sept08TTRCFinal.pdf ("Overall, the two
material support charges account for 71 0 0 of all convictions under the core terrorism
statutes, while terrorist acts or conspiracy to commit terrorist acts (18 U.S.C. [Y 2332
account for only of those convictions." .
U.S. DEPARTMENT OFJUSTICE, COUNTERTERRORISM SECTION,
http://www.justice.gov/nsd/counter_terrorism.htm (last visited June 9, 2012).
• genocide (18 U.S.C. 1091), war crimes (18 U.S.C. 2441), torture 18
U.S.C. 2340A)26
Some of these offenses clearly include the assorted national security offenses
mentioned in the last section that can be a tactic to commit a national security
crime but are not necessarily national security related in nature (such as hostage-
taking, which can also be similar to simple domestic kidnapping, or attacks on
internationally protected persons, i.e., diplomats, which is not necessarily a
terrorism-related attack). The offense also include crimes related to terrorism
which have no other home for enforcement within another section of the
Department ofJustice (such as proscriptions on piracy). However, the pre- and
post-9/11 crimes are also clearly represented.
Treason, espionage, sabotage, and terrorism are overlapping concepts, but form
four basic categories of national security crime. With our main typology formed
(but not overly committed to), we are ready to consider a criminology and
pragmatic law enforcement approach to national security crime.
IV. Il. Causes
What causes a person to engage in espionage or treason, or to sell weapons to a
rogue nation? Or to be a rogue saboteur or assassin, or to join a terrorist
organization? After studying our typology above, it is possible to detect a
dichotomy between the types of criminals likely to commit such offenses. First,
there are the professional, or what we might loosely term the "white collar"
national security criminals, namely, trained spies, weapons dealers, financial and
administrative sponsors of terrorism. Second, there are the "violent" criminals,
those who wage war on the United States by bombing government facilities,
assassinating officials, or taking hostages. This may be a crude division, but
separating professionalized criminals from radical users of violence will help
strengthen our understanding of national security crime. By evaluating these two
types of crime, we can divine related causes and potentially strengthen our ability
to interdict and deter national security crime. This area of study in particular is an
excellent one for criminological insights to bolster our study of national security
crime.
0'Vational
Espionage and terrorism are not only the most studied types of national security
crime, but they also the only types of national security crime to which the Justice
Department dedicates separate prosecutorial sections within the National Security
Division. Therefore they are the easiest to explore. Espionage and terrorism are
both studied below for examples of professionalized or white collar crime and
violent or radicalized crime.
26 Id.
A. Organized, Professional, or "White Collar" National Security Crime
Despite the significance and long history of the crime of espionage, the legal and
criminological profile of how espionage crimes are committed and tried is not
well-publicized. There may well be great research by counterintelligence officials
that is simply not available for public consumption. 27 Many of the details
regarding how these crimes are actually perpetrated and how they may be detected
are understandably not public information. This paper looks to the publicly
available details of past cases, and other public information to paint a non-
classified picture of these crimes.
Espionage cases are extremely infrequent, which makes general trends hard to
discern and prosecutions hard to predict. For example, while many people will
have financial problems, most will not turn to selling state secrets, so the fact that
many spies are paid is not easily reverse engineered to come up with a list of
persons who are "susceptible" to taking a bribe for committing espionage. And it is
also hard to place screening mechanisms in place that will not have massively
disproportionate costs, such as monitoring all documents that employees copy at
work and what documents they take home in the evening. Yet attention must
nevertheless be paid to what the causes of espionage are so that potential forms of
preventing and detecting these crimes can be put in place.
Though the causes of national security crime are rarely studied, there is some
scholarship and some conjecture about what drives a person to spy. During the
Cold N'Var, intelligence and counterintelligence operations on both the Soviet and
American sides encouraged both CIA and KGB members to seek out traitors and
spies from the other side. Their post-war memoirs give some insight into what may
motivate espionage and espionage-related treason crimes, as well as how these
crimes are instigated and ultimately detected. 64 Espionage was particularly
common over the long duration of the powerful but low-violence confrontation
between the United States and the U.S.S.R., and it provides the most examples of
modern espionage.
Former KGB Major Stanislav Levchenko described the motives of those who
commit espionage as conforming to four major causes: motivation (payment),
ideology (e.g., empathy for communist, democratic, fundamentalist Islamic causes,
etc.), compromise to avoid embarrassment), and ego (a desire to be important, a
feeling of under-fulfillment or underappreciation as a government official leading
to the use of the acronym MICE. 65 It has been suggested that the acronym is more
complete as SMICE, adding sexual gratification as a separate cause.66
Criminology author Frank E. Hagan has suggested another typology to
explain espionage: mercenary spies, ideological spies,
alienated/ egocentric spies, buccaneer or sports spy, professional spies
(nontraitors), compromised spies, and deceived spies. 67
27 For example, see Lynn F. Fischer &John E. Leather. ESPIONAGE INDICATORS 1985
2005: OF CLASSIFIED DATA SOURCES 2007 classified Secret . See also
KATHERINE L. HERBIG, CHANGES IN ESPIONAGE BY AMERICANS: 1947-2007 v
(Mar. 2008 , available at http://www.fas.org/sgp/library/changes.pdf (an
unclassified report explaining some work done on the classified side .
Mercenary spies, in Hagan's typology, are those who spy for payment from a
foreign government.68 Hagan claims that the majority of espionage cases since
1980 have been mercenary spies,69 though there may be some reason to doubt this
claim.
In addition to the memoirs of Cherkashin and Modin. mentioned below, see

64
CLARENCE
ASHLEY, CIA SPYMASTER: GEORGE KISEVALTER: THE AGENCY'S TOP CASE OFFICER
WHO HANDLED PENKOVSKY AND Popov 2004 ; MILTON BEARDEN &JAMES RISEN, THE
MAIN ENEMY: THE INSIDE STORY OF THE CIA'S FINAL SHOWDOWN WITH THE KGB
2004); OLEG KALUGIN, SPYMASTER: MY THIRTY-TWO YEARS IN INTELLIGENCE AND
ESPIONAGE AGAINST THE WEST 2009 : ROBERT WALLACE, H. KEITH MELTON &
HENRY R. SCHLESINGER, SPYCRAFT: THE SECRET HISTORY OF THE CIA's SPYTECHS,
FROM COMMUNISM TO AL-QAEDA (2009 .
FRANK E. HAGAN, INTRODUCTION TO CRIMINOLOGY 361 (7th ed. 2010 .
Gfi n.
Id. at 362. 68
Id.
6.9 Id.
National
Ideological spies are those who spy against their home nation because of a political
or other ideological affiliation with another. 28 Many spies do claim to have an
ideological affinity with the country that they spy for. However, Victor
Cherkashin, legendary Soviet spy-handler for two of the most famous American
turncoats,29 posits that ideological rationalizations for behavior are actually post
hoc, 30 and perhaps adopted so that the spy can feel like a good person, or
demonstrate loyalty to the country he or she is now serving. This will be discussed
further below. There are, however, some spy cases in which the accused traitors do
appear to have strong ideological motivations, including Julius and Ethel
Rosenberg31and the Cambridge Five 3233 in Britain, who deeply supported the early
communist movement in the Soviet Union. 7ö Hagan theorizes that ideological spies
were most common before the 1980s and 1990s, when he believes the motivation
then switched to financial remuneration. 34 A reasonable conclusion to take from
examining the known cases is that ideological considerations were more common
during the revolutionary period of the early Soviet Union (when many people,
including some inside the United States were supportive and hopeful about the
newly-emerged state of communism , and explained by other causes as the Cold
War went on.
Hagan says that there are some niche forms of spies: including a buccaneer or
sports spy, who simply enjoys the thrill. Potential sports spies include Christopher
Boyce and John Walker, who both cited the rush of spying. 35 Hagan also mentions
"professional spies," persons who are actually intelligence officers operating under
cover—usually by posing as a diplomatic agent and working out of his or her
country's embassy, though never really posing as a native or penetrating a U.S.
Government installation;3678 and a "deceived spy" who is convinced by an agent of
28 Id.
29 Robert Hanssen and Aldrich Ames. See infra note 72.
30 See VICTOR CHERKASHIN & GREGORY FEIFER, Spy HANDLER: MEMOIR OF A KGB
OFFICER: THE TRUE STORY OF THE MAN WHO RLCRUITED ROBERT HANSSEN AND
ALDRICH AMES 1 15-16 (2005)
31 For more information on the famous Rosenberg case, see RONALD RADOSH &JOYCE
MILTON, THE ROSENBERG FILE 2d ed. 1997).
32 For more information on the Cambridge Five, see YURI MODIN JEAN-CHARLES
DENIAU & AGUIESZKA ZIAREK, MY CAMBRIDGE E FRIENDS: BURGESS, MACLEAN,
PHILBY, BLUNT, AND CAIRNCROSS BY THEIR KGB CONTROLLER (1995 .
33 HAGAN, supra note 65, at 362.
34 361.
35 362.
36 <1.
79 Id.
a foreign government that he or she is spying to benefit their own government—
essentially, someone who consents to be a professional spy for their own country,
using Hagan's definition of the term, but is tricked into treason. 79 Professional
spies are what a person may envision when they think of espionage, a 'James
Bond" or "Mission Impossible" sort of figure breaking into a secure facility and
stealing highly guarded information. Spies of this kind are, unfortunately for
fiction writers, exceedingly rare.
Another category in Hagan's typology, the alienated or egocentric spy, is much
more common than the previous types. Alienated spies are those who betray their
country for personal reasons. The most common reasons seem to be: a perception
of unfair treatment in their government jobs, a sense of personal importance and
frustration when others fail to acknowledge these delusions of grandeur, a need to
be important (regardless of whether that importance comes from doing good or bad
acts , and a desire for revenge. There are many examples of persons motivated by
such considerations, though they may have also received money for their services
or professed ideological reasons for their crimes at some point in their espionage
careers. Volunteer spies—those who seek out the opportunity to betray their
country rather than being somehow recruited or pressured into it, are very often
motivated by these personal reasons. For example, after the CIA fired Edward Lee
Howard, he vindicated a personal vendetta against the agency, by defecting to the
Soviet Union. 37 Aldrich Ames, an American spy for the Soviet Union who may
have caused the most deaths of American agents in Russia estimates are between
ten and twenty-five), was motivated by his inability to progress in his career, as
well as by what he viewed as a number of missteps by the CIA: including lying to
the American public about the Soviet threat to gain more money. 38 Robert Hanssen
was similarly frustrated by his isolation and inability to influence his peers at the
FBI, as well extremely egotistical about his intelligence. 82 Earl Edwin Pitts also
cited numerous problems he had had with his superiors at the FBI, and
National
that he wanted to pay them back by frustrating their efforts by providing the,
Soviets with information to thwart the FBI's national security efforts. 39
The Cold War record is also replete with many examples of Soviet spies who
decided to work for the United States because of grievances or difficulty achieving
promotion within the Soviet intelligence services. Cherkashin notes that Oleg
Penkovsky, a member of the Soviet Scientific Research Commission, volunteered
his services for the British and Americans (a few times before they accepted) after
37 Id.; see also CHERKASHIN & FEIFER, supra note 72, at 147.
38 CHERKASHIN & FEIFER, supra note 72, at
28. 82 see id. at 238-39.
39 See U .S. DEPARTMENT OF ENERGY OFFICE OF COUNTERINTELLIGENCE,
Counterintelligence Bliefing Center—Earl Edwin Pitts,
http://www.hanford.gov/c.cfm/oci/ci_spy.cfm?dossier=48 (last visitedJune 9, 2012 .
suffering numerous setbacks in his career. He is also said to have suffered from
delusions of grandeur and sought to play a definitive role in determining the path
of the Cold War. 40 He ultimately played such a role by giving the United States the
intelligence that precipitated the Cuban Missile crisis. 4142 Valery Martynov was a
KGB officer who actually worked in the handling of spies and chose to spy for the
United States out of frustration with his inability to rise in his career. 86 The FBI
offered to supply Martynov with a fake FBI spy that Martynov could use to funnel
false, but convincing, intelligence back to his bosses at the KGB, while instead
being a spy for the U.S.87 The opportunity to seek professional validation and
become an important asset for the Americans was too much influence for
Martynov to resist.88 Cherkashin refers to another, still classified Soviet turncoat
for the Americans, who spied because of professional mistreatment by his KGB
superiors.89 Ronald Kessler claims that it was this agent, fittingly codenamed
AVENGER, whose intelligence eventually outed Ames and Hanssen. 43
As truly surprising as it seems that a person charged with protecting their country
could turn around and participate in espionage because of frustration at work, this
mindset is well-documented. And, with some thought, it does make some sense.
Espionage and treason are both lowfrequency phenomena. It is not difficult to
imagine that a few narcissistic
40 CHLRKASHIN & FEWER, supra note 72, at 63—64.

41 161. at 56.
Seeid. at 215-16.
[d. at 216. 88 See id.
42 .
43 251.
personality types can slip by the interview and clearance process without
detection. Narcissistic personality types are truly selfish: they do not join the
intelligence services because of deep patriotism or concern for the safety of their
countrymen, but because they perceive this career path to be one that will glorify
them and make them extremely important. When that expectation is frustrated, the
need for self-importance finds an alternate means for expression: the narcissist
becomes an extremely valuable "hero" to an opposing country, rather than a
mediocre and unappreciated civil servant in his or her own home country.
Accepting exorbitant pay for his or her services and professing true belief in the
opposing country's ideology both contribute to the traitor's perception that he or
she is important because the services are worth so much money, and heroic—
because, professing the new country's ideology will elevate the spy from viewing
his or herself as a mercenary-narcissist, to viewing him or herself as a patriot for
his or her newly adopted country.
The harm that these spies are doing may not be perceptible to them. The entire
betrayal occurs in secret, with no one knowing and no harm done to any known
person, isolating the spy from the consequences and any empathy he or she might
feel for victims. The betrayal of one's employer becomes an abstract goal of
defeating an objective that the spy professionally disagreed with and now sees a
way to affect from the other side, rather than a treasonous betrayal that may cost
American lives. Perhaps viewing the mindsets of "self-recruiting spies" in this way
can inform future efforts to combat espionage.
However, self-recruiting spies who reach out to opposing countries, offering their
services, are not the only ones to commit espionage. Hagan discusses another
category in his typology: the compromised spy. 44 A compromised spy is one who
is not independently motivated to commit espionage, and only agrees to do so
because of blackmail and coercion.92 Victor Cherkashin, a forty-year, high-ranking
veteran of the KGB, describes in his memoirs how such persons were recruited.
Intelligence forces for both sides would often follow and track government
officials of other governments, including "studying their activities to find
weaknesses— prostitutes, say, or gambling—and the best ways of taking
advantage of them. If a target seemed recruitable, we'd usually try to goad him into
92
working for us by means of money and sex. "93 Cherkashin also states that KGB
members would frame government agents by setting them up for illegal activities
and causing the police to arrest them, offering to help make the charges go away if
the target would supply information to the KGB. 94 The KGB would also target
opposing government agents with large gambling or other debts. Cherkashin
observes:
44 HAGAN, supra note 65, at 362.
Id.
The most successful cases involved 'swallows,' male or female

agents sent to seduce targets . . . [The targets could then be]
confronted with secret photographs or recordings. [Or] a swallow
could claim pregnancy and demand an abortion, or fictitious
outraged family members would surface and threaten action. Then
a marginally involved benevolent figure—I or another intelligence
officer—would offer to intervene and provide rescue, only to ask
for certain favors later in return.95
Yet Cherkashin notes that most set-ups such as these ended in the target refusing to
collaborate, reporting the attempted recruitment to their government, and returning
to their home country if they were at-that-time posted abroad. 96 "Even the worst
bastard, wife beater and cheat doesn't necessarily betray his country.
The fact that many or most attempts failed is not surprising, considering that many
people who choose government service, despite their flaws, are able to appreciate
the wrongfulness of exchanging national security secrets for self-preservation.
Many government officers were probably confident that reporting these set-ups
immediately would preserve their careers—their home government might very
well have been impressed that they resisted the set-up. Yet some succumbed out of
fear. The criminal profiles of such persons are harder to construct, as motivations
varied. Two well-known cases of compromised spies involve two U.S. Marine
Corps guards responsible for protecting embassy staff in Moscow: Arnold Bracey
and Clayton Lonetree. Their Russian "swallow" girlfriends convinced them
93
CHLRKASHIN & FEII•'ER, supra note 72, at 49.
94
See id.
95
161.
49-50.
97
30.
to turn over information they otherwise might have had no inclination to become
involved with.45
A March 2008 study by the Defense Personnel Security Research

Center examined changes in the motivation of spies in the post-Cold War
era.46 It reported 173 cases of espionage between 1947 and 2007, the majority
of which occurred during the Cold War. 47 The study analyzed not only
historical patterns but also isolated recent trends in the changing nature of
spying, trends that may be moving away from some of Hagan's findings. The
study isolated a trend to more of the spies being naturalized citizens, with an
45 See HAGAN, supra note 65, at 362.

46 KATHERINE L. HERBIG, CHANGES IN ESPIONAGE BY AMERICANS: 1947-2008, (Mar
2008 , available at http://www.fas.org/sgp/library/changes.pdf.
47 Id. at. vii.
existing allegiance to another country. 48 Two-thirds of citizen spies since

1990 volunteered, 80% overall receiving no compensation. 49 Between 2000
and the time of the study, no known citizen spies were compensated. 103 Six of
the eleven cases between 2000 and the time of the study involved terrorist
organizations. 104 Fewer of the new spies had clearances: more than a third had
none, compared to about a quarter during the Cold War. 50 As time progresses,
more and more volunteer spies reach out using the internet. 5152 This report
claims that most spies since 1990 have spied out of loyalty to another country,
with money as a motivation coming second and disgruntlement, noted above,
a third-place motivator. 07
Money does not appear to be much of a motivator in these cases. This may not be
surprising. For example, Islamic fundamentalist terrorists have previously been
radicalized by the xenophobia, exclusion, and discrimination they face when they
emigrate to or visit European countries. 53 The rise is espionage by foreign-
affiliated persons in the United
48 Id. at i.
49 Id.
103 Id.
50 Id. at viii.
51 Id.
52 Id. at 32.
53 See Robert S. Leiken, Europe's Angry Muslims, FOREIGN AFFAIRS July—Aug. 2005 ,
http://www.foreignaffairs.com/articles/60829/robert-s-leiken/europes-angry-muslims. See
also NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES,
THE 9/11 COMMISSION REPORT July 22, 2004), http://www.9-
I I commission.gov/report/911 Report.pdf noting that some of the 9/1 1 hijackers became
States could be attributable a similar sense of disaffection and lack of belonging in

the United States, although the United States generally fares better than Europe at
integrating minorities. Money may play only a secondary role in convincing those
who already have divided loyalties, or who have already become resentful of
American society or government.
B Radical, Violent National Security Crime
Explaining the causes of terrorism has generated no small amount of scholarship

over the years. Academics have looked to three main causes: structural factors,
psychological factors, and rational-choice analysis. 09 One of the most pervasive
questions has been: Are terrorists those who have to choose whether to give up
"worthy ends" or to resort to "unworthy means," or are they simply deviant
personalities who would have eventually committed other crimes had they not
become terrorists? 110
A structural analysis evaluates whether "the causes of terrorism can be found in the
environment and the political, cultural, social, and economic fabric of societies."
111
Structural factors to consider might involve the geographical location of the
terrorist or terrorist organization, the type of political system they are living under,
the amount of modernization in their location, whether any social or cultural or
historical factors might facilitate or inhibit turning to or using terrorist tactics,
organizational dynamics with the terrorist organizations themselves—including
their formation and split, the presence of other forms of unrest in the terrorist's
locality like riots or labor strikes or even war, whether there is public support in
some form for terrorism or even financial and logistical support from a well-
positioned well wisher like a neighboring state, the nature of any counterterrorist
authority or operations, the availability of weapons, and the existence of individual
or group grievances. 112 Following a structuralist analysis, we might be able to
make some conclusions like, for examp e:
radicalized while studying in Europe [hereinafter 9/11 REPORT]; LORENZO VIDINO,

RADICALIZATION, LINKAGE, AND DIVERSITY July 2011) (finding more instances
of Islamic fundamentalist radicalization in Europe .
JEFFREY IAN Ross, POLITICAL TERRORISM: AN INTERDISCIPLINARY APPROACH, 77
109
(2006).
110
NEIL C. LIN INGSTONE, THE WAR AGAINST TERRORISM 31 1982 quoting
William A. Hannay, International Terrorism: The Need for a Fresh Perspective, THE
INTERNATIONAL LAWYER 283 (April 1974)).
Ill
ROSS, supra note 109, at 79.
11
2 Id. at 82 (synthesizing Crenshaw, The Camses of Tenotism, 13 COMP. POL. 379 1981)).
terrorism might flourish better in urban and more anonymous locations. 113
Terrorism might be facilitated if an oppressed ethnic or cultural group has a proud
warrior tradition, 114 but might be inhibited if the group ascribes to a pacifist
religion.
The existence of a grievance has been thought to be the most important structural
factor. 115 And of course this makes sense—the amount of urbanization or the
existence of a warrior culture matters little without a rallying cry. Examples of
grievances might include the desire for independence—many terrorist
organizations like the Irish Republican Army in Ireland or the National Liberation
Front in Algeria were formed by ethnic groups that conceived of themselves as
oppressed and used terrorist tactics to agitate for political independence from a
colonizer. Other intrastate examples of terrorism might include a grievance like
rejection of the ruling government's ideology—such as a number of extreme left-
and rightwing revolutionary and counterrevolutionary groups operating in
Colombia.
Psychological theories, on the other hand, "try to specify and explain the mental
processes of individuals and groups"116 and might technically include rational
choice evaluations, 117 since rational choice might be considered part psychology,
part economics. This Article looks at rational choice separately due to its emphasis
on situation-based logical thinking as opposed to individual characteristics.
Psychological theories l 18 might include a psychoanalytical view, questioning as to
whether those who turn to terrorism have common psychological traits or a
"profile,."120 whether terrorists are made, not born, and can be explained by
"developmental" theories; 121 whether terrorism can in some cases be attributed to
learning,122 frustration-aggression theories—suggesting that an inability to
resolve a
1131d. at 82.
1141d. at 83.
1 15 Id. at 85.
1 16 Id at 79.
1171d.
1181d. at 87.
1 19
See generally GUSTAVE MORE, TERROR IN QUEBEC: CASE STUDIES OF THE FLQ
(1970 120 See Charles A. Russell & Bowman H. Miller, Profile ofa Tenonst, in PERSPECTIVES
ON TERRORISM 45—60 Lawrence Zelic Freedman & Yonah Alexander eds., 1983). 121 See
SABRI SAYARI, GENERATIONAL CHANGE IN TERRORIST MOVEMENTS: THE
TURKISH CASE 10 July 1985 .
122
Brian L. Pitcher & Robert L. Hamblin, Collective Leaming in Ongoing Political Cofficts, 3 INT'L
POE. SCI. REV. 71, 73-74, 82 1982 .
grievance—a structural factor noted above—might cause some persons to adopt
violence, 54 or narcissism-aggression theories—noting that many terrorists share a
history of receiving a significant blow to their ego that they try to correct through
violence—a factor not unfamiliar to us from our evaluation of what might cause
spying activity. 124
Even if psychological factors are not the sole cause of an individual deciding to
54 See generally TED ROBERT GURR, WHY MEN REBEL (1970 .

RICHARD MERRILL PERLSTEIN, THE MIND or APOLITICAL TERRORIST 25-27 1991)
become a terrorist, this does not mean that they are not helpful for profiling
terrorists and therefore not only pursuing policies which can decrease the behavior,
but also for tracking potential terrorists before their most destructive crimes occur,
or finding offenders after the fact. While many terrorists are believed not to be
functionally insane, they do appear to share certain traits. For example, many have
"paranoic symptoms" such as an overwhelming belief that they have been selected
for an important purpose and must complete a critical mission. 55 They also display
dissociative behavior, demonstrating kindness and sentimentality in ordinary life
and detachment during episodes of violence. 26 It has been posited that terrorists
tend to have above average, intelligence. 56 This would not be so surprising given
that sometimes persons with above average intelligence are more susceptible to
ideological pitches—something used in cult recruiting. However, the intelligence
of terrorists is disputed. 57Numerous high profile bungles by terrorists might
suggest that less intelligent persons are attracted to be lone wolves. 5859
A few terrorists may even have the thrill-seeking impulse, similar to the rare
buccaneer spy, discussed above. 30 It is noted that "[t]errorism is a youthful
profession," and the great majority of terrorists are under 30 years of age. 60 It may
be that buccaneers are more common among the young, and 61that either youth or a
thrill-seeking personality leads to recklessness and a feeling of immortality. 1 32
Perhaps this thrill-seeking desire can be attributed to some of the younger lone
wolves appearing in Western culture today. Mobsters like Henry Hill noted that
their attraction to a criminal lifestyle began with seeing local gangsters, feared by
many and committing crimes with impunity. 133 Somehow this cements in the mind
as being a "cool" thing. Something seems to have happened in Western culture
now that young men, perhaps too young to be traumatized by September I Ith
when it happened, are, growing up in its aftermath and seeing that terrorism is the
biggest, baddest thing they can do. Lone wolves are most common in the, West,
where they have negative experiences in their formative years and education, 62
such as cultural intolerance and isolation. 63 This situation could lead them to act
out through terrorism where no sustained terrorist organization exists, or can be
55 Conrad V. Hassel, 'Tenor: The Clime oflhe Plivileged—An Examination and Prognosis,
TERRORISM l, 1, 5-6 (Nov. 1977 126
[d. at 32-33.
56 Id. at 32.
57 Daniel Byman & Christine Fair, The Casefor Calling Them ,Nihøits, THE ATLANTIC July
— Aug. 2010 http://www.theatlantic.com/magazine/archive/2010/05/the-case-for-
callingthem-nitwits/ 8 130/.
58 See, e.g., id.
59 See Hassel, supra note 125, at 33 thrill-seeking behavior would be a more plausible
explanation if there were more terroristic episodes that were not linked to a serious
underlying grievance).
60 LIVINGSTONE, supra note 1 10, at 43.
61 Id.
NICHOLAS PILLGGI. WISEGUY 5-6 (25th anniv. ed., 2011 .
contacted, or is interested in having them as members.

Another psychological trait common to many terrorists is a tendency to blame
society broadly for frustrating them in their desire to be important or achieve great
things. 136 The notoriety of terrorism thus becomes an end run to fame and
prominence. Such egotists sound not dissimilar from the egotists within the U.S.
Government who ultimately become spies when their professional ambitions
within the United States are frustrated. In both cases, the criminal behaviors and
their purported motivations seem paradoxical: terrorists are claiming to help
vindicate the grievances of oppressed groups, but kill innocents; public servants
sign up to vindicate their country's interests, but end up betraying the nation in the
most damaging possible ways. A strong sense of egoism and the need to be
important may be the primary motivator in such narcissistic cases. 64
A relative of narcissistic behavior can also manifest in a number of terrorism
cases: primary process thinking. 138 These persons project their needs and wants
and concerns onto a larger community and often think they "speak for the
people"—without being asked. 65 Such persons, when they encounter situations
they find unacceptable in the world, try to modify the world and not their
expectations. 66
An additional psychological consideration, terrorists may employ necessary coping
mechanisms to filter their understanding of what they are, doing and view it as
something other than what it is without being actually psychologically affected.
Often these beliefs center around viewing themselves as legitimate warriors
despite their non-adherence to the most basic rule of armed conflict the
requirement that civilians not be targeted. 67 They may view the violence they
cause clinically and cultivate desensitization to it. 142 In order to view their
activities as acceptable or even laudable, they will convince themselves that the
enemy is not human, or view the target as "evil" and the world as a simplified
62 LIVINGSTONE, supra note 1 10, at 37.

63 See 9/1 1 REPORT, supra note 108, at 160—63 (describing the Hamburg cell . Many of
the hijackers were not radicalized until they left their home countries, the conditions of
which they claimed as their grievances. Isolation and cultural intolerance in Europe
appears to have helped radical them, and may explain why there are more successful
Islamic fundamentalist terrorist attacks in Europe, where xenophobia is more pervasive
than in the United States. See also Isaac Kfir, Islamic Radicalism: 77ze UK Case, 47 LEGAL
ASPECTS 01 COMBATING TERRORISM 42, at 46—47 2008 discussing the persistent racial
discrimination against non-Caucasian Muslims in the UK which may have contributed to
the July 7, 2005 terrorist attacks in London . LIVINGSTONE, supra note 1 10, at 37.
136
64 Id. at 50.
138 Id. at 37.
65 Id.
66 [d.
67 Id. at 74.
142 Id.
place of black and while. 68 They will also cultivate beliefs that reinforce that good-
versus-evil worldview, including beliefs that utopia can be achieved through their
actions, belief in the absolute morality of the underlying cause, and reverence for
self-sacrifice. 144
Rational choice analysis, the last of our three perspectives, assumes that actors are
rational and seeks to evaluate the incentives and disincentives that cause their
behavior. Rational choice analysis can be particularly helpful in criminology since
it can not only indicate a cause of crime, but also a means of preventing the crime:
altering incentive structures. Under some evaluations, the adoption of terrorist
techniques might be a logical option. 69 Although repugnant, this can scarcely be
surprising: terrorism has often worked. 70 National liberation groups seeking
independence have been able to fight a war of attrition using terrorism tactics that
may eventually cause a militarily superior force to withdraw. Terrorist tactics bring
publicity to political causes—often the end in itself. The use of terrorist tactics to
attack government objectives can undermine popular support for those objectives.
One thing that is often wondered is how terrorists can possibly cope with or accept
doing something that is considered highly morally condemnable, by the rest of the
global community. Isn't it necessarily so that terrorists are crazy if they chose to be
terrorists? Yet rational choice, decision-making can play a large role in making
terrorism appear to be a viable option, especially given the existence of structural
factors like serious grievances. Lack of opportunity to participate in politics,
dissatisfaction with leadership and elites, and other situations that frustrate
nonviolent vindication of grievances can all have the effect of increasing
incidences of terrorism. 71 Groups that produce terrorists may also feel "relative
deprivation" compared with the group they seek to adapt. 148 Relative deprivation is
an irrational concept in economics modeling, but a common one to human
sociological thinking. The theory goes that in a situation in which everyone in
society is better off, if inequalities are more severe, the poorest members of society
will "feel" poorer than they did when they actually had less. Under this model, the
success of the West, financial inequalities in developing countries, and other social
situations can create a sense of irrational "relative deprivation" that sets the stage
for intergroup conflict to even out inequalities.
Looking to these three main models, we can speculate as to different
methods to combat terrorism: from reducing grievances to profiling possible
68 Id. at 82.
144 Id.
69 Martha Crenshaw, The Logic of Termism, in ORIGINS OF TERRORISM: PSYCHOLOGIES,
IDEOLOGIES, THEOLOGIES STATES OF MIND 7-24 (Walter Reich ed., 1990 .
70 For example, the Irish Republican Army in Ireland or the National Liberation Front in
Algeria. See genually ALISTAIR HORNE, A SAVAGE WAR OF PEACE: ALGERIA 1954—1962
2006): ALANJ. WARD, THU EASTER RISING: REVOLUTION AND IRISH NATIONALISM (2d
ed. 2003)
71 GUS MARTIN, UNDERSTANDING TERRORISM 64 3rd ed. 2010 .
1481d. at 67.
offenders to altering incentives. But our modeling of the causes of terrorism cannot
simply look to these three main strains of thought to understand the complex nature
of the changing threat of terrorist crime. For example, one important issue to
understand in our models is trends in terrorist behavior. Much of the modeling of
terrorism that this paper draws on is from the pre9/1 1 era when terrorist groups
were often large, hierarchical, secular, national liberation groups. Now there are
more decentralized groups seeking greater lethality with less of a discrete agenda.
149
How does one explain the shift? What are the new structural factors, new
psychological profiles, and new incentives of the "new" terrorists? 150 Rather than
being a community of freedom fighters using shocking tactics, there are more lone
wolves who are not themselves personally affected by the grievances they profess
—instead they are elites who somehow turn to religiosity and violence, after
appearing to grow up with relative normalcy. 151 How will this be explained?
While this section provides a synopsis of some theories as to the causes of

terrorism generally, a complex and unique combination of these factors is most
likely at work in any particular terrorist criminal act. 152
V. Ill. Detection
Extending the use of the examples of espionage and terrorism for our two polar
kinds of national security crime, the next issue to consider in the crimes' profiles is
a law enforcement perspective on the issue of detection.
Espionage committed by citizens is an extremely low-occurring crime, with less
than 200 cases in the 20th and 21st centuries 153 out of the millions of past and
present government employees. Many detection methods that might seem like
good ideas at first glance—such as monitoring of government employee
communications or developments in their personal
Walter Laqueur, The Age of Tenon»n, in THE NEW TERRORISM: ANATOMY,

TRENDS AND COUNTER-STRATEGIES (Andrew Tan & Kumar Ramakrishna
eds. 2002) charactering the "new" terrorism has four key characteristics: lethality.
religiosity, networked rather than hierarchical, and more striking power).
150
SeeJAMESJ .F. FOREST (ED THE MAKING OF A TERRORIST: RLCRUITMENT,
TRAINING, AND ROOT CAUSES 2006) (2 vols.).
151
Sam Peleg, Comtemporay Modem Tenonsm: Actors, Motivations, Countenneasures, in FIGHTING
TERRORISM IN THE LIBERAL STATE: AN INTEGRATED MODEL OF RESEARCH,
INTELLIGENCE, AND INTERNATIONAL LAW I , 3 (Samuel Peleg & Wilhelm Kempf eds.,
2006 .
152
See ROOT CAUSES OF TERRORISM (Tore Bjorgo ed., 2005) (evaluating
diverse case studies of causes .
153
HERBIG, supra note 99, at vii.
lives—are simply economically out of reach. Trying to find a spy by tracing the
information he or she sent to the opposing country is also nearly impossible: if the
Russians or Cubans or Al Qaeda appears to have accessed two different pieces of
classified information, the U.S. Government cannot simply find one person who
has recently accessed both. The same information could be from multiple leaks,
and dozens of persons at a minimum access any particular piece of classified
information.
During the Cold War, the most common method of discovering espionage was by
obtaining a spy from the opposing side with knowledge about espionage
operations in their country. This reality is one that completely belongs in the
history and mentality of the Cold War: spies spying on spies. However,
Cherkashin verifies that spies ferreting out other spies was truly the best detection
method "almost all exposed spies are betrayed by other agents." There would
normally be over a dozen intelligence officers who knew about a number of active
spies, and intelligence officers from one country are often known to be intelligence
officers by other countries. Thus, an FBI or CIA agent from the United States
would approach some low-paid Soviet intelligence officer with money troubles—
perhaps a gambling debt or a sick relative—and offer $1 million dollars and a
comfortable life in the United States for him or her and his or her family in
exchange for information identifying security leaks. Sometimes, such "pitches," as
they are called in the counterintelligence community, would work, often they
would not, and many times they would be met with a "counterpitch." Perhaps the
Soviet would agree, but only to feed misinformation and disrupt American
intelligence work. This normal back-and-forth of the Cold War era is a part of
history now, but direct intelligence on state-affiliated spies in the United States is
probably still easiest to gather through turning intelligence officers from the
opposing side.
In the post-Cold War era, so far as we know, incidents of traditional espionage
appear to have declined. However, there is an increasing amount of economic
espionage directly against U.S. businesses, and there is a rise in the use of spycraft
by more amateur, non-cleared, nongovernmental, and even terrorist-affiliated
spies. There are more volunteer spies finding their handlers over the internet.
Nontraditional methods and objectives of spycraft change the method of detection
from spy versus spy to reliance on other law enforcement techniques. For example,
spies affiliated with terrorist organizations may be found as part of general
observation of a
154
CHERKASHIN & FEIFER, supra note 72, at 252-54.
terrorist group, use of undercover agents pretending to represent a foreign country
trying to contact people through the internet or people, or through a wiretap or
other physical searches of known spies or other criminals.
Terrorism poses its own detection issues. While terrorist organizations
coordinating attacks between multiple members might be easier for law
enforcement to gain information on or infiltrate, there are also lone actors who
self-radicalize and are extremely hard to predict. Organizations themselves are
secretive, dangerous, and in the era of global telecommunications and the Internet,
may be globally far-flung. Without the hierarchy of a state controlling the actions
of operatives, they can be unpredictable, or splinter into uncontrollable factions.
Actual violent attacks are of course easy to detect, but the objective of
counterterrorism operations, more emphasized by the post-Patriot Act approach, is
to prevent attacks before they occur. To do that, there is a need to detect operatives
and unearth terrorist plans, networks, and financing schemes.
Detection of terrorism may involve a combination of traditional law enforcement

approaches and a more intelligence centric approach following 9/1 1. 155 Human
intelligence is compiled from countries and terrorist organizations around the
world. Additionally, ordinary American citizens provide human intelligence in the
form of tips to law enforcement. Using either bought or civically volunteered
intelligence, the next step is to monitor the organization, networks, or individuals
suspected and learn their plans and associates. The main method of monitoring
communications is a version of a wiretap or microphoning of the residence,
vehicles, etc. Title Ill and the Foreign Intelligence Surveillance Act are the ovo
main legal mechanisms to monitor these communications.
There are two ways to obtain a wiretap in the United States. The first is through
what is known as "Title Ill." Title Ill is Title Ill of the Omnibus Crime Control and
Safe Streets Act of 1968, also known as the Wiretap Act. 156 This law lays down
the acceptable uses and methods of wiretapping for use as evidence in a crime.
Title Ill provides that:
155
See generally MATHIEU DEFLEM, THE POLICING 01• TERRORISM:
ORGANIZATIONAL AND GLOBAL PERSPECTIVES (2010 .
156
18 U.S.C. 25 10—22 1968), amended by Electronic Communications Privacy Act
of
1986, Pub. L. No. 99-508, 100 Stat. 1848 1986), the Communications Assistance to Law
Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994), the USA PATRIOT Act,
Pub. L. No. 107-56, 1 15 Stat. 272 (2001 , the USA PATRIOT Act Additional
Reauthorizing Amendments Act of 2006, Pub. L. No. 109-178, 120 Stat. 278 2006 , and
The Attorney General, Deputy Attorney General, Associate
Attorney General, or any Assistant Attorney General, any acting
Assistant Attorney General, or any Deputy Assistant Attorney
General or acting Deputy Assistant Attorney General in the
Criminal Division or National Security Division specially
designated by the Attorney General, may authorize an application
to a Federal judge of competent jurisdiction for, and such judge
may grant in conformity with section 2518 of this chapter an order
authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of the
offense as to which the application is made, when such
interception may provide or has provided evidence of [list of
crimes.] 157
Title 18 U.S.C. 2518 provides the procedure for requesting a wiretap. The U.S.
Government must submit a full and complete accounting of all relevant facts to a
federal judge, explaining what evidence the government intends to obtain and how
long the wiretapping will endure. 158 The judge evaluates whether the government
has shown probable cause that a crime will be detected. A final order granting the
requested wiretap must state the person being targeted and the nature and location
of the tapped line, amongst other things. 159 The period of the wiretap cannot be
longer than 30 days, though a judge can extend another 30 days. 160
A FISA (short for "Foreign Intelligence Surveillance Act") 161 wiretap, or even a
FISA physical search, is given in quite another circumstance: not when the
government can show that it will gather evidence to support a criminal case, but
instead when the government can
by the Foreign Intelligence Surveillance Act Amendments Act of 2008, Pub. L. No. I
IO'261, 122 Stat. 2436 (2008 .
18 U.S.C. 2516(1) (2012 .
18 U.S.C. 2518(1) (2012 .
18 U.s.c. 2518(4) (2012 .
18 U.s.c. 2518(5) (2012 .
The Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783
161
originally codified at 50 U.S.C. 1566 et seq. is an Act of Congress which prescribes

procedures for physical and electronic surveillance and the collection of "foreign
intelligence information" between "foreign powers" and "agents of foreign powers."
FISA has been amended by the USA PATRIOT Act of 2001 to include terrorist groups.
show probable cause to believe it will obtain evidence that a targeted person is the
"agent of a foreign power." Applications for wiretaps are not requested in the
normal federal courts of the United States, but from the Foreign Intelligence
Surveillance Court (with appeals heard by the Foreign Intelligence Surveillance
Court of Review , the proceedings of which are ex parte and generally classified.
The court can authorize wiretapping for periods of 90 days or longer, with
extensions. 162 A FISA wiretap can also occur without a court order for a period of
over a year, if for intelligence purposes, on the authority of the U.S. Attorney
General, and no U.S. person is targeted. 163
In 2004, FISA was amended to include a "lone wolf' provision: 50 U.S.C. 1801 (b)
(l)(C). A "lone wolf' is a non-U.S. person who engages in or prepares for
international terrorism alone—they are, in effect, themselves the foreign power.
The lone wolf provision amended the definition of "foreign power" to permit the
FISA courts to issue surveillance and physical search orders without having to find
a connection between the "lone wolf' and a larger foreign government or terrorist
group. Broadening the scope of FISA, preventative surveillance of lone wolves has
become increasingly important to prevent terrorist attacks when foreign groups are
unable to operate efficiently in the U.S. and instead focus their efforts on recruiting
such lone actors.
IV. Prevention
Given that detection of espionage and terrorism is so difficult, it is not surprising

that the U.S. and other governments invest so much time in prevention of national
security crime. The main methods of preventing crime are deterrence through
punishment (which seems as though it would have questionable success with
regard to national security crime), incapacitation of offenders (generally only
useful once the offender is identifiable probably by having already done a serious
crime , addressing the underlying societal causes (often costly), and hardening the
target of attack. For most national security crimes, whose scale is so dangerous and
frightening, hardening is the most commonly pursued strategy.
The main means of preventing espionage is requiring persons who handle
classified information to get 'security clearances" and handle
50 U.S.C. 1805(d) (2012 .
50 U.S.C. (2012).
classified material in carefully constructed and controlled government buildings.
While fortified buildings protect information from direct thievery, the clearance
process seeks to identify individuals who may betray national security information.
There are three main forms of clearances: Confidential, Secret, and Top Secret. 164
The lowest level is that possessed by military personnel, a Top Secret clearance is
required for nearly all national security posts. 165 Confidential clearances must be
reinvestigated every 15 years, Secret clearances every 10 years, and Top Secret
clearances every 5 years. 166 Confidential information is the least likely to affect
national security if accidentally disclosed, Top Secret is the most likely. 167
The SF-86, the questionnaire used for the clearance process, publicly available
and shows the main areas about which investigators are concerned. 168 Besides
collecting past jobs and addresses and family and friends' names to go and fish
around and see if anything turns up, the form looks for evidence of past foreign
contacts, drug and alcohol use, mental health, criminal records, and any potential
financial vulnerability. Criminal records, mental instability, and substance abuse
could all suggest general unreliability that would preclude the U.S. Government
from placing trust over classified information with the individual. More
interestingly for espionage purposes, the extensive questioning about any and all
foreign contacts in the SE-86, and about any and all financial vulnerabilities,
appears to seek out persons who might be susceptible as compromisable or
mercenary spies: persons with gambling or other debts, or persons who are even
just known to foreign agents, and therefore can be watched until a blackmail
opportunity presents itself.
For some positions, a polygraph examination is needed to verify the answers given
in the application for a clearance. For even fewer positions,
CLEARANCEJOBS.COM, SECURITY CLEARANCE FREQUENTLY ASKED QUESTIONS I

n.d. , available at http://www.clearancejobs.com/security_clearance_faq.pdf. 165
JOBMONKL'Y, UNDERSTANDING Gox LRNML'NT SECURITY CLEARANCE,
http://www.jobmonkey.com/governmentjobs/gov-security-clearance.html (last visited
June 10, 2012 .
CLEARANCEJOBS.COM. supra note 164, at 2.
167
Derrick Dortch, Hush-Hush: Obtaining a Government Secunty Clearance, WASH.
POST June 23. 2006 ,
http://www.washingtonpost.com/wpdyn/content/article/2006/06/22/AR2006062201458.
html.
OI•FICE 0b PERSONNEL MANAGEMENT, STANDARD FORM 86: QUESTIONNAIRE
FOR NATIONAL SECURITY POSITIONS (Dec. 2010), available at
http://www.opm.gov/forms/pdf_fill/ SF86 .pdf.
the polygraph expands beyond personal history, signs of instability, financial
information, and foreign contacts, into what is called the "lifestyle polygraph." 169
This polygraph is used to dig out any skeletons in one's personal life, often secrets
pertaining to the person's sexual life, to determine the amount of blackmailable
information that could be used against the person, either now or in the future. 170
Typical topics include drug and alcohol use, gambling, homosexuality, solicitation
of prostitutes, extramarital affairs, and so on. 171 It is conventional wisdom that
honest answers and full disclosure will assist in obtaining a clearance172 (for
example, drug use experimentation at a young age may be considered relatively
common , however, there are obviously some cases in which the information
disclosed will suggest that the person is not stable, or is highly blackmailable.
Acts of sabotage are also prevented using hardening tactics. Important government
personnel have the protection of bodyguards, including the famous Secret Service
detail that guards the U.S. President. Government facilities, particularly the
working facilities of government employees, that contain not only the
government's people but its information and instrumentalities, are guarded by a
number of protective services, including forces like the Pentagon Police or the
Federal Protective Service. The U.S. Marshals protect the courthouses and judges
of the United States—including the justices of the Supreme Court, though a special
force of Supreme Court Police guard the Supreme Court's courthouse. The Marine
Corps Embassy Security Group, a part of the U.S. Marine Corps within the U.S.
Navy, guards U.S. embassies around the world. Many of these buildings are
designed securely, with metal detectors, identification badges that scan in for
secure access, and so on.
Preventing acts of terrorism relies not only on the hardening of government
personnel and facilities, but also some cultural symbols, like national monuments,
which may also benefit from guards, metal detectors, and other hardeners.
Additionally, items that might become the tools of a terrorist attack must be
guarded. Due to a period of frequent terrorist hijacking of airplanes in the 1970s
and 1980s particularly, and through September I I th, airport facilities have been
increasingly well guarded, with
CLEARANCEJOBS.COM, supra note 164, at l l.

170 Id.
171 See id.
172 Id. at 8.
VI. llamard 72
metal detectors, luggage scanning, strict rules on what may be carried on an

airplane, and the use of Air Marshals, who fly secretly on planes at random to
discourage and interrupt any terrorist attacks.
Other methods of preventing terrorism exist, including the already mentioned
option of mollifying the underlying causes. The United States might mollify
Islamic extremism, for example, by supporting the IsraeliPalestinian Peace
Process, or appealing to political and religious moderates in the Middle East.
"Underlying cause" forms of prevention are often expensive and impractical, but
they may be well-suited in principle to the idea of alleviating the all important
72 DEPARTMENT 01,' THE ARMY, FIELD MANUAL 27-10: THE LAW OF LAND WARFARE,
75—77 July 15, 1976 , available at http://www.afsc.army.mil/gc/files/fm27-10.pdf.
structural factor of the grievance, and in the case of terrorism it may be especially
desirable as advancing these processes has the double goal of furthering U.S.
foreign relations abroad and promoting international peace and security generally.
In cases of international terrorism particularly, a prevention option exists that

rarely is available for other national security crimes; the option to reduce the
enemy through the use of military force. This option is scarcely desirable in
espionage since it would involve starting hostilities with another state, and with
homegrown terrorists or saboteurs or assassins, the potential criminals are hard to
find and fight in this way. Persons inside the United States cannot ordinarily be
fought with military force as an alternative to criminal prosecution. Though
approaches to terrorism are more diversified, hardening remains the most utilized
method of preventing national security cnme.
V. Trial and Punishment

During times of war, many spies, saboteurs, and traitors were tried and sentenced,
often to death, by military commissions. 173 Because such persons were usually not
entitled to prisoner of war status under the Hague Regulations for the conduct of
war, this was a common practice in other countries as well. 73 There were spy-trials
during the American Civil War 7475
73 Regulations Respecting the Laws and Customs of War on Land, arts. 29—31, annexed to
Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat.
2277, I Bevans 631. The Hague Regulations are irnportant and enduring treaties for the
conduct of warfare.
74 See LOUIS FISHER, CONG. RESEARCH SERVICE, RL 32458, MILITARY TRIBUNALS:
HISTORICAL PATTERNS AND LESSONS 16—32, particularly '20 July 9, 2004 .
National
and during World War 11. 176 There is a famous case from World War Il in which
Nazi saboteurs secretly entered the United States were caught and tried by military
commissions, and most were executed. 177 Some of those Nazi saboteurs were even
American citizens. 178
Most national security crime cases are tried before federal judges in the
local district of federal court by the local United States Attorney's Office. U.S.
Attorneys are federal prosecutors responsible for prosecuting all federal crimes in
their one of the 94 districts in the United States and its territories. U.S. Attorneys
are assisted in espionage and espionage-related cases by specialized prosecutors
from the Counterespionage Section (CES) 179 and in terrorism cases by the
Counterterrorism Section (CTS). Other national security crimes, depending on
whether affiliated with stateon-state activities or non-state actors, are divided
between CES and CTS with most state-on-state issues of sabotage or weapons
trading going to CES and non-state actors going to CTS. Both United States
Attorneys and members of the Counterespionage Section work for the Department
of Justice, the lawyers for the federal government. The Department ofJustice has
two main components: the United States Attorney's Offices, located all around the
country and handling whatever kinds of cases occur in their territory; and the
lawyers at "Main Justice" in Washington, D.C., who are often specialized in a
particular kind of law and can give expert assistance to the local United States
Attorneys' Offices.
While a national security crime trial might proceed like any other in many
respects, there are special laws for the protection of classified evidence. The
American criminal law tradition puts heavy emphasis on public disclosure of all
evidence at trial. The Sixth Amendment itself guarantees a right to public trials.
This used to create a problem with espionage cases in particular, because the
defendant demanded that the classified information he or she was accused of
disclosing be presented at trial. This tactic was known as "graymail": defendants
could force the
176
Id. at 32—59, and particularly 5, 37, & 46.
FEDERAL BUREAU OF INVESTIGATION, FAMOUS CASES: GEORGEJOHN DASCH
1 77
AND THE NAZI SABOTEURS, http://www.fbi.gov/libref/historic/famcases/nazi/nazi.htm (last

visited June 12, 2012). See also FISHER, supra note 1 75, at 37—47.
178
See Ex paHe Quirin, 317 U.S. I (1942) (citizens may be tried by military commission if
they are enemies of the United States in war .
U.S. DEP'T OFJUSTICE, NATIONAL SECURITY DIVISION, SECTIONS AND
1 79
OFFICES, COUNTERESPIONAGE SECTION, http://www.justice.gov/nsd/sections-

offices.html (last visitedJune 12, 2012 .
government not to bring prosecutions when the information at issue was too
important to be disclosed at trial. Congress reacted to this problem by passing the
Classified Information Procedures Act (CIPA) 180 in 1980. CIPA allows for
classified information to be kept secret, and even redacted or changed for court
proceedings, to protect it from public disclosure. CIPA has been found
constitutional 181 despite the fact is does take some issues of proof of guilt out of
public view.
One of the most distinct elements of a trial for treason or espionage or sabotage or
terrorism is the sentencing element. Federal sentences for such offenses are very
ungenerous to the offender. For example, a terrorism crime resulting in death can
be punished by the federal death penalty. 182 Even terrorism crimes that are
financial or unconsummated carry very heavy penalties. Terrorism crimes are also
subject to a very serious "terrorism enhancement" under the U.S. Sentencing
Guidelines. 183
Providing defense information to a foreign government can result in a sentence of
life in prison. 184 Not only can a spy receive an extremely lengthy prison term, the
dangerousness of the inmate may make it necessary to have extremely restrictive
methods of incarceration applied. For example, extremely damaging spy Robert
Hanssen is in solitary confinement at "AdMax" in Florence, Colorado,
underground, where it is nearly impossible to communicate with anyone by any
means, in order to ensure that he does not disclose any more national security
information, of which he still knows volumes. 80
Under the U.S. code, treason can also be punished by life in prison, perhaps even a
death sentence as well. Treason remains one of the few crimes for which it is
unclear whether the death penalty could be
Pub. L. No. 96-456, 94 Stat. 2025 (18 U.s.c. App. 111 1-16 , amended by Pub L. No.
100-690, 102 Stat. 4396, Title Vll, Sect. 7020(g) (1988 ; Pub. L. No. 106-567, 1 14 Stat.
2855, Title VI, 607 2000); Pub. L. No. 107-306, 1 16 Stat. 2423, Title Vlll,
2002); Pub. L. No. 108-458, 1 18 Stat. 3691, Title 1, 1071(0 (2004); Pub. L. No. 109-177,
120 Stat. 248, Title V, 506 a g 2006 .
181
See, e.g.. LARRY M. EIG, CONG. RESEARCH SERVICE. CLASSIFIED
INFORMATION PROCEDURES ACT CIPA):AN OVERVIEW, iii March 2, 1989 .
182
see, e.g., 18 U.S.C. (2012).
183
U.S. SENTENCING GUIDELINES MANUAIÄ 3Al .4 (2012 .
18 U.s.c. 794 (2012).
See BUREAU OF PRISONS, INMATE LOCATOR, ROBERT PHILIP HANSSEN,
http://www.bop.gov/iIoc2/LocateInmate.jsp last visited June 12, 2012).
0'Vational
constitutionally applied. The Supreme Court has previously implied that the
imposition of the death penalty outside of cases of murder is unlikely to be
constitutional, because it would violate the proscription on "cruel and unusual
punishment" of the Eighth Amendment. 75 Because no treason case has gone to trial
in over fifty years, it is not clear how the Supreme Court or any court would rule on
this issue. While treason may not always cost human lives, it is the ultimate
betrayal of one's country and an extraordinarily serious crime.
VII. Conclusion
This paper makes two opposite arguments. First, it argues for the creation of a new,
more specialized legal subject, National Security Criminal Law. Second, it argues
criminal law courses could benefit from a more interdisciplinary focus, one that
looks not only to the crimes and cases themselves, but also criminological insights
on the causes and nature of the crimes, and pragmatic law enforcement realities
about detection, prevention, trial, and punishment. Both suggestions need not be
followed in a single instance, but it is the endeavor of this paper to give a quick
sketch of what "National Security Crime" is and what it can be. This concept is a
discrete one, and by splitting it between different disciplines, or failing to study it
altogether, full understanding of it is undermined. The importance of the criminal
law as a means not only to punish but also help stem national security threats will
ultimately be vindicated by improvement of this field. A fuller understanding of the
crimes falling under the headings of treason, espionage, sabotage, and terrorism
will help us understand them better individually and fight them collectively.
75 See Coker v. Georgia, 433 U.S. 584, 598 1977) (plurality) (noting in passing that the
death penalty may not be appropriate for any crime in which a human life is not taken .

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1 Ilanard National Security journal / Vol.

National Security Crime

implications of convicting a dual-national of Japan of treason, and so he deported Kawakita to

first meeting of the U.S. Congress—criminalized at the same time as treason, 11

11 Act of April 30, 1790, 8, 1 Stat. 112 (1790 .

Whoever knowingly or willfully advocates, abets, advises, or

Whoever organizes or helps or attempts to organize any society,

Conspiracy to do the same is also prohibited and subject to the same

The criminal provision following the Smith Act, 18 U.S.C. 2386,

organizations subject to foreign control, organizations with both political activity

The next grouping of related concepts in Chapter 1 15 includes 18

Section 2388 forbids willfully making or conveying false reports or false

Act ofJune 15, 1917, 40 Stat. 219, 21 7, 3-8.

The last part of Chapter 1 15, 18 U.S.C. 2389—90, is the most

(c) Whoever, for the purpose aforesaid, receives or obtains or

(d) Whoever, lawfully having possession of, access to, control

(e) Whoever having unauthorized possession of, access to, or

(f) Whoever, being entrusted with or having lawful

(l) through gross negligence permits the same to be removed from

And finally, in 18 U.S.C. 798, "Disclosure of classified information":

(4) obtained by the processes of communication intelligence

l . Disclosure of Classified Information

18 U.S.C. 795 2012 .

The espionage prosecutions in the United States are coordinated by the

censorship-freedom-of-expression-award-announced; Tie CO' ofBlood. Report on Extra-judicial

national defense technologies, particularly if related to atomic energy. These

The relevant prohibitory provision of the Foreign Agents Registration Act

• 953. Private correspondence with foreign governments (U.S. citizen

954. False statements influencing foreign government (similar to the

956. Conspiracy to kill, kidnap, maim, or injure persons or damage

960. Expedition against friendly nation carrying up to three years

962. Arming vessel against friendly nation (augmenting forces to

966. Departure of vessel forbidden for false statements (ten years

a Whoever willfully injures, damages, or destroys, or attempts

(A) a foreign government, including such use as a mission to an

Other diplomatic crimes outside of Chapter 45 might include 18 U.S.C. 112:

If the criminalization of espionage is aimed at protecting national defense

country or organization. The trade need not be weapons-related (though as a

Recently, "economic espionage" the spying of foreign agents on American

(l) steals, or without authorization appropriates, takes, carries

shall, except as provided in subsection (b), be fined not more than

Treason, espionage, disclosure of classified information, spymg, and trading in

INVESTIGATION (May 31, 2005), http://www.fbi.gov/page2/may05/ciprimer053105.htrn.

undermining its vital instrumentalities. Most of these statutes appear in Chapters 18

Terrorism is generally thought of as the use of violence against civilian targets

25 CENTER ON LAW AND SECURITY, NEW YORK UNIVERSITY SCHOOL OF LAW,

In addition to the memoirs of Cherkashin and Modin. mentioned below, see

40 CHLRKASHIN & FEWER, supra note 72, at 63—64.

The most successful cases involved 'swallows,' male or female

A March 2008 study by the Defense Personnel Security Research

45 See HAGAN, supra note 65, at 362.

existing allegiance to another country. 48 Two-thirds of citizen spies since

States could be attributable a similar sense of disaffection and lack of belonging in

B Radical, Violent National Security Crime

Explaining the causes of terrorism has generated no small amount of scholarship

radicalized while studying in Europe [hereinafter 9/11 REPORT]; LORENZO VIDINO,

54 See generally TED ROBERT GURR, WHY MEN REBEL (1970 .

contacted, or is interested in having them as members.

62 LIVINGSTONE, supra note 1 10, at 37.

While this section provides a synopsis of some theories as to the causes of

Walter Laqueur, The Age of Tenon»n, in THE NEW TERRORISM: ANATOMY,

Detection of terrorism may involve a combination of traditional law enforcement

originally codified at 50 U.S.C. 1566 et seq. is an Act of Congress which prescribes

Given that detection of espionage and terrorism is so difficult, it is not surprising